\l THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW SELECTION OF CASES ON THE CONFLICT OF LAWS BY JOSEPH HENRY BEALE, Jr. "I PROFESSOR OF LAW IN HARVARD UNIVERSITY IN TWO VOLUMES Vol. I CAMBRIDGE HARVARD UNIVERSITY PRESS T 33655 C5 190! SL b 04 SELECTION OF CASES UN THE CONFLICT OF LAWS BY JOSEPH HENRY BEALE, Jr. PROFESSOR OF LAW IX HARVARD UNIVERSITY VOL. 1. JURISDICTION : REMEDIES CAM BR] DGE EARVARD UNIVERSITY PRESS 648371 Copyright, 1900, 1907, By Joseph Henry Beale, Jr. Sanibttsttg litres: John Wilson and Son, Cambridge, U. S. A. PREFACE. The topic of the Common Law upon which Judge Story has imposed the title, The Conflict of Laws, consists of four parts, different in origin, though closely related to one another in their practical application. The Conflict of Laws is first concerned with the jurisdiction of States, — the extent of their legislative and judicial power, and of the obligation and right of individuals to obey and to take advantage of the legislation of one or another State. These are questions of international law, which should properly be decided in every country in the same way. The topic is next concerned with the creation of legal rights and obligations, as a result of the sovereign action of some State ; often an international matter, though the questions involved are rather questions of foreign fact than of law. The next concern of this branch of the law is the recognition and enforcement within one State of rights and obligations which have been created in another State ; a question not in any sense inter- national, but to be determined in accordance with the municipal law of the State concerned. Finally, there remains to determine the legal process by which, if at all, the foreign right shall be enforced ; also obviously a municipal question. But though the doctrines which make up the topic, The Con- flict of Laws, are of various origin, they all form part of the Common Law of England, and have been adopted as such in the States of the American Union : they are law with us, not because they arose in international comity and usage or in municipal prac- tice, but because they are acted upon in our courts. The name, Private International Law, sometimes applied to the whole topic, is therefore inadequate and misleading. This collection of cases is the result of a seven years' experience in teaching the Conflict of Laws. The arrangement of the sub- Vi PKEl'Ai K ject may be open to logical objections ; but there seemed to be sufficient practical reason for the order adopted. Most of the cases here printed were decided in the English and American courts ; but valuable cases in the British Colonial courts have also been printed. In these Colonies, as in the United States, the principles of the Conflict of Laws are of especial importance, since in them business transactions are seldom confined within State or Colonial lines. Several foreign cases will be found in the collection. So far as the rules of law illustrated by them have their origin in inter- national law, these cases may well be regarded as having persua- sive authority in our own courts ; cases involving, for instance, the limits of national jurisdiction, the validity of a foreign marriage, and the existence generally of foreign-acquired rights. On such questions the views of foreign courts should be carefully considered. It is unnecessary to point out to one familiar with the principles of the Common Law that greater weight should be given to the opinions of foreign courts, delivered in the course of actual litigation, than to the academical specula- tions of even the ablest authors, when not based on the authority of decided cases. On such questions as the effect, accord- ing to our own law, of the existence of a foreign-acquired right, where the problem, as has been pointed out, is one of purely municipal law, the views of foreign courts, administering a differ- ent system of law, are of absolutely no weight as authority. Where decisions of this nature have been included, the purpose has been to illustrate and emphasize the difference between the doctrines prevailing in the modern civil law and in our own law. The need of studying this difference has been shown by recent cases, notably the case of Hilton v. Gnyot. Most of these cases are here printed as they were given in Clunet's " Journal die Droit Internationa/ Prive" not being re- ported in any official series accessible to me. For the translation of the cases I must take the responsibility. In the French deci- sions and others reported in the French form (for instance, the Belgian and Egyptian) I have done more than translate. The report as published does not ordinarily contain the opinion of the court, but merely the judgment, which, however, includes a full hut formal recital of the facts and reasons on which the judgment is based. 1 have so changed the form of statement (without the slightest change otherwise) as to throw the judgment into the PREFACE. vil form of an opinion. This has been done by omitting the formal commencement of each recital. 1 could not defend such a prac- tice if the primary object of this collection were not in my opinion thereby furthered. The cases cited in the notes by no means exhaust the authori- ties. The purpose has been to include in the notes only a suffi- cient number of well-considered cases to show the actual state of authority on each question. I have not always indicated the omission of the reporter's state- ment of facts, where sufficient facts appeared in the opinion, or of the arguments of counsel. All other deviations from the original report have been indicated. J. H. B. TABLE OF CONTENTS Preface . . Table of Cases Page XI PART I. JURISDICTION. CHAPTER I. LAW. Section I. The Extent of Legislative Power 1 Section II. The Origin and Change of Law 65 Section III. Concurrent Legislative Jurisdiction 8 5 Section IV. The Nature of Foreign Law 132 14:} Section V. Comity . . CHAPTER II. JURISDICTION OVER PERSONS AND THINGS. Section I. Domicile «* Section II. Taxation '-"- ,() Section III. Temporary Presence 298 CHAPTER III. JIIilSDICTION OF COURTS. Section I. Jurisdiction in Rem 802 Section II. Personal Jurisdiction 828 Section III. Jurisdiction Qi \-> is Rem t81 Section [V. Jurisdiction for Divorci . ' '' TABLE OF CONTENTS. PART II. REMEDIES. CHAPTER IV. Park Right of Action 497 CHAPTER V. Procedure 527 TABLE OF CASES. [This table contains all cases in the text, and all the American, British and Colonial cases cited by the editor in his notes. Cases in the text are printed in small capitals.] 191, A. B. & Co.. In re Abd-ul-Messih v. Farra Abington v. North Bridgewateb Aikerson v. E. R. R. Adams Express Co. v. Ohio Adamson, Copix v. Advocate-General, Thompson v. Advocate-Gexeral of Bexgai. r. Raxee Surxomoye Dossee Airhart v. Massieu Alden, Harden v. Alderson, Freeman r. Alexander v. Tolleston Club Allen v. Thomason 158, Alley v. Caspari Alliance Bank v. Carey Alston v. Newcomer Anderson v. Anderson Anderson, Reg. v. Andrews v. Herriott Anglo-American Tel. Co., Di- rect U. S. Cable Co. v. Axox. Akmixgtox, S. v. Armstrong, Reg. v. Armytage v. Armytage Arndt v. Arndt Arxot v. Griggs Astley v. Capron Atherton v. Atherton Attorney-General v. Campbell v. Hope Attobney-Genebal v. Pottinger Attorney-General, Shaw v. Sudeley v. Wallace v. Atwater v. Townsend 527, Augusta, Porterfield v. A very, Brinley v. Aykr v. Tilden B. Bachelor, Standard Oil Co. v. liain v. Whitehaven, &c. Ry. I'.akkk, Kline i . P. v. Balasubramanian, Bangaruaami Balcom, First Nat. Bank v. Baldwin, Munday i . Balk, Habbis v. Page 353 165 177 504 243 348 285 67 66 452 390 372 215 340 540 183 216 51 530 37 510 453 53 439 390 308 154 459 285 285 173 438 285 285 540 I'll 506 551 223 548 153 366 i:.s 216 427 Ballinger v. Lautier Bal lister v. Hamilton Baltimore. Lord. Penn v. Baltimore i; O. R. R. o. Glenn Bander, Bradley r. Bangarusami v. Balasubramanian Bangor v. Readfield Parsons v. Bangs v. Brewster Bank. Brunswick Terminal Co. r. Baxk of Augusta v. Earle Bank of Australasia i\ Harding r. Nias Bank of Q. S. v. Donna lly Barbour v. Barbour Barnes. Frothingham v. Barnhill. M. & O. R. R. v. Barrox. Mineral Point R. R. v. Barton r. Barton Bassett. Hallet v. Bates r. Ry. Beard r. Beard Beard, Le Roy v. Beattie, Johnson v. Beedy, McVicar v. BELCHEBTOWN, ( IMMINGTON V. Belgenland, The Bell v. Kennedy Bexaiad, Hamida v. Bengal, Adv. -Gen. of, v. Ranee Subnomoye Dossee Bentley, S. v. 229, Berchtoldt, Chatfield v. Bebqneb & Bnoel Brkwing Co. v DbeyfUs Bethany, ' Ixford v. Blackstone /'. Miller Blain, Ex parte Blaine r. Colonial Marine Ins. Co. Blankaho r. ( Iai.iiy Bleeker, Swedish Amer. Bank v. Hoard of Assessors, Detroit o. BoggS, Weaver V. Bondurant, Watson o. Bool lil>a v r. Wiscassel Bobland v. Boston Boston, Bobland v. Boston, l>\\ ight o. (Mis r. Sears v. Thorndike v. Boston, &o. < '<» . Tillinghasl v. Page 183 551 372 219 228 365 215 184 190 541 143 350 350 540 212 33S 423 531 210 199 403 324 529 199 390 1 til 302 145 546 67 2 ."-7 2S5 218 216 258 351 427 65 412 235 364 215 190 202 202 228 155 [99 I- I 333 XIV TABLE OF CASES. Page Freeman, Bubdick v. 514 Fremont, Gibbs v. 551 Frothingham v. Barnes 338 Frothingham v. Shaw 282 Frye's Election 177 Furtick, Nat. Bank v. 412 G. Galdy, Blankard v. 65 Galitzin, Matthaei v. 504 Gardiner v. Farmington 216 Gardner v. Ogden 237 Gardner v. Thomas 510 Gartner, Cofrode v. 514 Geoghegan, Doucet v. 200 (Ierman West African Co., Ein- WOLD V. 423 Germania F. I. Co. v. Francis 219 Getehell. Sanders v. 177 Gibbs v. Fremont 551 Girbs v. Howard 532 Gibson v. Burgess 373 Gilmah r. (Oilman 184 GlBABD V. TBAMONTANO 367 Glenn v. Marbury 529 B. & 0. R. R. v. 219 Goodwin. Easterly v. 199 Gordon, Carrier v. 223 Howell v. 324 Gore, Harvard College v. 158 189 Grant v. Dalliber 210 Greasley, Cloud v. 372 Green r. Green 438 Greene v. Greene 199 . 212 v. Windham 191 ,212 Griggs, Abndt v. 308 Grizzard, Hannon v. 200 Grothaus, Marheineke v. 216 Gboveb & Bakeb Sewing Machine Co. r. Radcliffe 354 Guerrant v. Fowler 372 Guier v. O'Daniel 155 Guy, Perkins v. 540 Guyot, Hilton v. 144 H. Hackettstown Bank v. Mitchell 212 Haddock v. Haddock 466 Hager, Cook v. 219 Haggabt v. Morgan 182 ffaight, S. v. 222 Haines, Elsasser v. 364 Williams v. 530 Hairston v. Hairston 191 Hall v. Fayetteville 228 Hall. Campbell v. 54 Hallet v. Bassett 199 Hamida v. Benaiad 546 Hamilton v. Dallas 174 Hamilton v. Schoenberger 530 Hamilton. Ballister v. 551 Hammond, Port Roval R. R. r. 373 Pape Eanberry v. Hanberry 211. 4.V2 Hannon v. Grizzard 200 Hanson, Rand v. 324 Harden v. Alden 452 Hardesty v. Fleming 2iiii Harding, Bank of Australasia v. 3.30 Hardy v. De Leon 210 Habbal v. Haeral 200 Harris v. Balk 427 Harris v. Harris 459 Harrisburg, the 54 Harrison v. Harrison 454 Cross v. 67 Hart i\ Horn 191 Harteau v. Harteau 211, 452 Hartford v. Champion 154 Harvard College v. Gore 158, 189 Harvey, Mooar v. 174, Haskins, Holyoke v. Haven v. Foster Hays v. Pacific Mail S. S. Co. Headley, Davis v. Heidelbaek, Ex parte Henderson v. Stanifobd Henry r. Sargent Hernandez, Underhill v. Herriott, Andrews v. Herron v. Keeran Hiekok, Schwinger v. Hicks d. Skinner Hiestand v. Kuns Hilton v. Guyot Hinds v. Hinds 200 216 132 220 373 551 337 504 63 530 257 325 177 216 144 211 HOADLEY V. NOBTHEBN TBANSP. Co. 547 Hollis, Wheeler v. 216 Hoi man, Watkins v. 373 Holvoke v. Haskins 216 Home Ins. Co., P. v. 257 Hood v. S. 454 Hooper, Felcb. v. 317 Hope, A. G. v. 285 Horn, Hart v. 191 Home v. Home 184 Howard v. Ingersoll 510 Howabd, Gibbs v. 532 Howell v. Gordon 324 Cadwalader v. 199 Hoyt v. Commissioners of Taxes 223 Hubbell v. Hubbell 452 Hudson, Perm. B. & I. Assoc, v. 364 Hull, Owings v. 135 Humphrey v. Humphrey 438 Hunt v. Hunt 211, 338 Hunter, Carson v. 540 Hurlbut, Renieb v. 408 Imlay v. Ellefsen Ingersoll, Howard v. International L. Ins. tine r. Irby r. Wilson Soc, Mar- 527 510 219 452 TABLE OF CASES. XV J. Jack. Walker v. Jackson r. Polk Jackson. Mexican Nat. R. R. r. Jackson. Monroe v. James, School Directors r. 215, Jabdine, Chappell f. Jefferson, hi re r. Washington Jemison, Townsend v. Johnson v. C. & N. W. Ry. r. Debary-Baya M. Line v. Kimbro v. Smith Johnson, Fitzsimmons v. Putnam v. Johnstone v. Beattie Jones v. Jones I?. Spencer Jopp v. Wood Judge, S. ». Judges of Court of Registra- tion, Tyler v. Judkins r. Reed Page •2:. 7 210 523 216 216 77 257 182 533 548 222 37 3 183 358 174 199 454 390 199 200 317 182 K. Keeran, Herron r. Kelley, McConnell v. Kellogg r. Winnebago County Kelly, Crapo v. Kennedy r. Ryall Kennedy, Belt v. Kentucky. Union Transit Co. v. Ketchum v. Buckley Kkyn. Reg. v. Kimbro. Johnson v. Kinner, First Nat. Hank v. Kirkland v. Whateley Kline v. Bakes K mgiits, Roberts v. Kopelke v. Kopelke Korte, Sturgeon r. Kowai.SKI V. MOCALTJVO Krone v. Cooper Kuns, Hiestand v. L. Lal.att v. Smith Laird v. R. R. Lake s. & M. S. Ry., Drake v. Lamar v. Mahony La m \k v. Micoi Lang, Wyeth II. & M. 0. Co. v. Latham, Mow ry v. Lautier, Ballinger v. I aw, < !omp. Gfin. Transatlan tique v. I k Mesubieb v. Le Mesubieb I eona rd v. New Bedford I i. Roy v. Be vbd Lksi.i v. Reg. v. Levy v. Levy < 'uni. V. 257 1X4 155 51 215 145 262 82 1 373 76 216 134 512 552 210 526 183 210 540 510 532 209 212 423 2 1 6 183 345 426 529 63 529 373 Page Lewis. Succession of 216 Leyland, i 'omber v. 333 Likens, ( lark v. 1S3 Lindsfelt, St. Sure o. 454 Linke v. Van Aerde 40.". Linnaeus, Brewer v. 191 200 Lippman, Don v. 540 Lister v. Wright 504 Litowich v. Litowich 454 Little v. Chicago, S. P. M. & O. Ry. :, l 5 Littlefield r. Brooks 209 Livermore, Fayette v. lit] Loaiza v. Superior Court 317 Lodge r. Phelps 529 Long v. Ryan 1S4 Longley, Robinson v. 223 Lopez. Leg. V. 53 Lord. Moorhouse v. 199 Louisville v. Sherley 216 Louisville & X. R. R. v. Nash 412 Lowell v. Newport 216 Lowther, Metcalf v. 215 Lubec v. Eastport 210 Ludlow v. Szold 183 Ludlow, Wilbraiiam v. 189 Lynch, Brown r. 215 Warren v. 540 Lynde r. Columbus, C. & I. C. Ry. 374 M. Matter of Cooley Met lonnell v. Kelley McCormick v. R. R. Eliot v. MeCrory, McLaughlin v. McDonald v. Malloby McDougall, Putnam v. McEwen v. Zimmer Me* lee r. Sweeney Me( ruiness, Tyson v. McKeen r. County of North amp TON \L KENNON i>. Winn Maelaren. ( arrnn Iron Co. r. McLaughlin v. Mc< Irory McVicar v. Beedy Ma. Iih. \ V. S. Madrazo v. Willes Maguire v. Maguire Mahonj . I amar v. m \ nit v. Norwich Union F. I. Soc. Malloby, McDonald v. Manchester, < !om. v. Mann v. < lark Ma nville. ( '..llins r. Ma rbury, < J lenn v. Mardrous, Fab w; v. Marheineke r. ( .p>t hail-; Marrett, In r< Marshall, \\ ilkins o. Ma rl ine i . I nl pmo t. L. I ns. S. .. Mason i \\ u rner 2 si; 184 358 390 317 40 400 333 372 510 83 219 317 390 210 40 21 I 209 103 H- 2!> 184 540 529 85 216 I ■ • .,iu xvm TABLE OF CASES. State v. Bentley 229. v. Dayton v. De Casinova v. Dennis v. Haight v. Judge u. Ross Dennis v. Hood v. Maddox v. Pearce v. Van Fossen v. State Nat. Bank, St. Nicholas Bank r. State Tax on Foreign-Held Bonds Steers, Succession of Stempel, New Orleans v. Stevens r. Fisk Stockton v. Staples Stockton, Sea Grove B. & L. Assoc, v. Stoneman v. Erie Ry. Strange, Carpenter v. Stratton v. Brigham Sturgeon v. Korte Sturm, C. R. I. & P. Ry- v. 317, Sudeley v. A. G. Superior Court, Loaiza v. Sutherland v. Second Nat. Bank Swedish-American Bank r. Bleeker Sweeney, McGee v. Swift v. Philadelphia & R. R. R. v. Tyson In re Estate of Szold, Ludlow v. Page 257 lit!) 210 200 222 200 226 177 454 210 1!»1 454 142 229 158 252 452 184 542 529 373 183 210 532 285 317 401 412 372 116 95 277 183 Townsend, Atwater v. 527, Trammell v. Trainmell Tramontano, Girard v. Trescott, Dennysville v. Turner v. Thompson Tyler v. Judges of Court of Reg- istration Tyson v. McGuiness Tyson, Swift v. U. Udnt v. Udny Underhill v. Hermandez Union Transit Co. v. Kentucky U. S. v. Perot U. S., Desmare v. Mitchell r. Upton v. Northbridge Van Aerde, Linke v. Vance, In re Vanderpoel v. D'Hanlon Vaxdeviere, Vanguilbert v. Van Fossen v. S. Vanguilbert v. Vandeviere Van Heyden v. Salvage Van Oppen, Newby v. Van Vlissengen, Caldwell v. Vauohan, Reg. v. Venable v. Paulding Verelst, Rafael v. Vianna, Df la Vega v. Vreeland v. Vreelaml T. Taft v. Ward 529 Talmadge v. Talmadge 155 Tappan v. Merchants' Nat. Bank 235 Taylor. Woodruff v. 394 Teel v. Yost 358 Thelau v. Thelau 454 Thomas, Gardner v. 510 Thomas. Watts v. 504 Thomason, Allen r. 158, 215 Thompson v. Adv.-Gen. 285 v. Cowell 340 B. & M. R. R. v. 532 Fireman's Ins. Co. v. 345 Thompson. Turner v. 460 Thompson Oil Co., Noble v. 403 Thorndike v. Boston 184 Thornton, Western R. R. v. 403 Thrasher v. Everhart 530 Tilden, Ayer v. 551 Tillinghast V. Boston, &c. Co. 333 Tirveillot r. Tirveillot 495 Todesco v. Dumont 434 Tolleston Club. Alexander v. 372 Tootal's Trusts, In re 159 Townsend d. Jemison 533 W. W's Marriage, In re Wakeman, Otis v. Walden v. Canfield Walker v. Jack Roberts v. Wallace v. A. G. Ward, Taft v. Warner, Mason v. Wood v. Warren v. Lynch Warrender v. Warrender Washington, Jefferson V. Washington County, Bristol v. Watkins v. Holman v. Watkins YYatkinson, Wood v. Watson v. Bondurant v. Brewster Watson, Darrah v. Watts v. Thomas Watts, Massie v. Weatherley v. Weatherley Weaver v. Boggs Weeks, Robins v. Wendell, Whittier v. Pa?« 540 216 367 216 460 317 510 95 155 63 262 136 173 154 216 465 216 177 525 454 525 366 219 293 64 200 497 527 372 492 512 200 257 216 285 529 504 373 540 212 183 257 373 452 324 215 540 338 504 368 484 364 210 325 TABLE OF CASES. XLX • Page Westenholz, Schibsby i . 328 Western R. R. v. Thornton 403 Western Union Tele. Co. v. Cat.t. Pub. Co. 127 Western Union Tel. Co. v. Clark 525 West Gardiner, North Yarmouth v. L83 Whateley, Kirkland v. 216 Wheat v. P. C. & F. D. R. R. 403 Wheeler v. Burrow 215 v. Hollis 216 White v. White 212, 237, 4.V2 Whitehaven, &c. Rv., Bain v. 549 Whittier v. Wendell 325 WlLBKAHAM 0. LUDLOW 189 Wildenhus's Case 24 Wilhehn v. Francis 427 Wilhelm r. Wilhelm 491 Wilkins r. Marshall 154 Willes, Madrazo v. 46 Williams v. Dormer 212 v. Haines 530 Williams v. Roxbuby 183 Williamstown. Bulkley v. 209 Williford. Burgett v. 540 Wilson, Cheever v. 211, 4.V2 Irby v. 452 Windham, Greene v. 191, 212 Winkley t?. Newton 227 r. v. v. V. Wright i Page Winn, McKennon d. 83 Winnebago County, Kelly u. 155 Winship p. Winship 45 l Wiscasset, Boothbay o. 190 Wood r. Fitzgerald* 200 Boeder L83 Warner 373 Watkinson 324 Wood 216 Jopp r. L99 WOODEUFF r. TaYLOK 394 Boynton 358 Lister v. 504 Wightman, Potinger v. 215 Wubtz, Ditty r. 191 Wyeth H. & M. O. Co. v. Lang 423 Y. Velverton v. Velverton 211 Yost, Teel o. 359 Young v. Dbeyftjs 379 V. POLLAK 209 Zimmer, McEwen v. 333 CASES ON THE CONFLICT OF LAWS. PART I. JURISDICTION. CHAPTER I. L A W. SECTION I. THE EXTENT OF LEGISLATIVE POWER. REGIXA v. KEYN. Crown Case Reserved. 1876. [Reported 2 Ex. D. 63 , i3 Cox C. C. 403.] Cockburn, C. J. The defendant has been convicted of the offence of manslaughter on the high seas, on a trial had at the Central Crim- inal Court, under the statute 4 & 5 Whk IV., c. 3G, s. 22, which empowers the judges sitting there to hear and determine offences k - committed on the higli seas and other places within the jurisdiction of the Admiralty of England." The facts were admittedly such as to warrant the conviction, if there was jurisdiction to try the defendant as amenable to English law. Being in command of a steamship, the " Franconia," and having occasion to pass the " Strathclyde," a Brit- ish ship, the defendant brought his ship unnecessarily close to the latter, and then, b} r negligence in steering, ran into the " Strathclyde" and broke a hole in her, in consequence of which she filled with water and sank, when the deceased, whose death the accused is charged with having occasioned, being on board the " Strathclyde," was drowned. That the negligence of which the accused was thus guilty, having resulted in the death of the deceased, amounts according to English law to manslaughter can admit of no doubt. The question is, whether the accused is amenable to our law, and whether there was jurisdic- tion to try him? The legality of the conviction is contested, on the ground that the accused is a foreigner; that the " Franconia," the ship he commanded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage; that the alleged offence was committed on the high seas. 1 See Reg. v. Lopez, 7 Cox C. C. 431 ; Reg. '•• Armstrong, 13 Cox C. (J. 184.— Ed 1 2 EEGINA V. KEYN. [CHAP. I. Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England. The facts on which this defence is based are not capable of being disputed ; but a twofold answer is given on the part of the prosecu- tion : — 1st. That, although the occurrence on which the charge is founded took place on the high seas in this sense, that the place in which it happened was not within the body of a county, it occurred within three miles of the English coast ; that, by the law of nations, the sea, for a space of three miles from the coast, is part of the ter- ritory of the country to which the coast belongs ; that, consequently, the " Franconia," at the time the offence was committed, was in English waters, and those on board were therefore subject to English law. 2ndly. That, although the negligence of which the accused was guilty occurred on board a foreign vessel, the death occasioned by such negligence took place on board a British vessel ; and that, as a British vessel is in point of law to be considered British territory, the offence having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory. I reserve for future consideration the arguments thus advanced on the part of the Crown, and proceed, in the first instance, to consider the general question, — how far, independently of them, the accused, having been at the time the offence was committed a foreign subject, in a foreign ship, on a foreign voj'age, on the high seas, is amenable to the law of England. Now, no proposition of law can be more incontestable or more uni- versally admitted than that, according to the general law of nations, a foreigner, though criminally responsible to the law of a nation not his own for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts done beyond such limits : — " Leges cujusque imperii," says Huber de Conflictu Legum, citing Dig. de jurisdictione, 1. ult., " vim habent intra terminos ejusdem rei- publicoe, omnesque ei subjectos obligant, nee ultra." ' ; Extra territo- rium jus dicenti impune non 'paretur" is an old and well-established maxim. " No sovereignty," says Story (Conflict of Laws, s. 539), " can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullit} - , and incap- able of binding such persons or property in any other tribunals." " The power of this country," says Dr. Lushington in the case of The Zoll- verein, 1 Sw. Adm. 96, " is to legislate for its subjects all the world over, and as to foreigners within its jurisdiction, but no further." This rule must, however, be taken subject to this qualification, namely, that if the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incum- SECT. I.J KEGINA V. KEYN. 3 bent on the courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations. The question of express legislation will be dealt with hereafter. For the present I am dealing with the subject with reference to the general law alone. To the general rule to which I have referred there is one excep- tion, — that of a foreigner on board the ship of another nation. But the exception is apparent rather than real ; for by the received law of every nation a ship on the high seas carries its nationality and the law of its own nation with it, and in this respect has been likened to a floating portion of the national territory. All on board, therefore, whether subjects or foreigners, are bound to obey the law of the coun- try to which the ship belongs, as though they were actually on its ter- ritory on land, and are liable to the penalties of that law for any offence committed against it. But they are liable to that law alone. On board a foreign ship on the high seas, the foreigner is liable to the law of the foreign ship only. It is only when a foreign ship comes into the ports or waters of another state that the ship and those on board become subject to the local law. These are the established rules of the law of nations. They have been adopted into our own municipal law, and must be taken to form part of it. According to the general law, therefore, a foreigner who is not resid- ing permanently or temporarily in British territory, or on board a British ship, cannot be held responsible for an infraction of the law of this country. Unless, therefore, the accused, Keyn, at the time the offence of which he has been convicted was committed, was on British territory or on board a British ship, he could not be properly brought to trial under English law, in the absence of express legislation. 1 These decisions are conclusive in favor of the accused in the pres- ent case, unless the contention, on the part of the Crown, either that the place at which the occurrence, out of which the present inquiry has arisen, was, though on the high seas, yet within British waters, by reason of its having been within three miles of the English shore ; or that, the death of the deceased having occurred in a British ship, the offence must be taken to have been there committed, so as in either case to give jurisdiction to the Admiralty, or the courts substituted for it, shall prevail. These questions it becomes, therefore, necessary can- fully to consider. On entering on the first, it is material to have a clear conception of what the matter in controversy is. The jurisdiction of the admiral, however largely asserted in theory in ancient times, being abandoned as untenable, it becomes necessary for the counsel for the Crown io have recourse to a doctrine of comparatively modern growth, namely, that a belt of sea, to a distance of three miles from the coast, though 1 The learned Chief Justice then examined the authorities, which in his opinion denied jurisdiction to the Admiral in a eusc of the present sort. — Ed. 4 EEGINA V. KEYN. [CHAP. I. so far a portion of the high seas as to be still within the jurisdiction of the admiral, is part of the territory of the realm, so as to make a foreigner in a foreign ship, within such belt, though on a voyage to a foreign port, subject to our law, which it is clear he would not be on the high sea beyond such limit. It is necessary to keep the old assertion of jurisdiction and that of to-day essentially distinct, and it should be borne in mind that it is because all proof of the actual exercise of any jurisdiction by the admiral over foreigners in the narrow seas totally fails, that it becomes necessary to give to the three-mile zone the char- acter of territory in order to make good the assertion of jurisdiction over the foreigner therein. Now, it may be asserted without fear of contradiction that the posi- tion that the sea within a belt or zone of three miles from the shore, as distinguished from the rest of the open sea, forms part of the realm or territory of the Crown is a doctrine unknown to the ancient law of England, and which has never yet received the sanction of an English criminal court of justice. 1 From the review of these authorities we arrive at the following re- sults. There can be no doubt that the suggestion of Bynkershoek, that the sea surrounding the coast to the extent of cannon-range should be treated as belonging to the state owning the coast, has, with but very few exceptions, been accepted and adopted by the publicists who have followed him during the last two centuries. But it is equally clear that, in the practical application of the rule, in respect of the particular of distance, as also in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, great difference of opinion and uncertainty have prevailed, and still continue to exist. As regards distance, while the majority of authors have adhered to the three-mile zone, others, like M. Ortolan and Mr. Halleck, applying with greater consistency the principle on which the whole doctrine rests, insist on extending the distance to the modern range of cannon, — in other words doubling it. This difference of opinion may be of little practical importance in the present instance, inasmuch as the place at which the offence occurred was within the lesser distance ; but it is. nevertheless, not immaterial as showing how unsettled this doctrine still is. The question of sovereignty, on the other hand, is all-important. And here we have every shade of opinion. One set of writers, as, for instance, M. Hautefeuille, ascribe to the state territorial property and sovereignty over the three miles of sea, to the extent of the right of excluding the ships of all other nations, even for the purpose of passage, — a doctrine flowing immediately from the principle of territorial property, but which is too monstrous to be admitted. Another set concede territorial property and sovereignty, but make it subject to the right of other nations to use these waters for the purpose of navigation. Others again, like M. Ortolan and M. 1 The learned Chief Justice then examined the opinions of writers upon Interna **«■- « »1 Law as to territorial jurisdiction over the littoral seas. — Ed. SECT. I.] REGINA V. KEYN. 5 Calvo, deny any right of territorial property, but concede k> jurisdic- tion ;" by which I understand them to mean the power of applying the law, applicable to persons on the land, to all who are within the territo- rial water, and the power of legislating in respect of it, so as to bind every one who comes within the jurisdiction, whether subjects or foreigners. Some, like M. Ortolan, would confine this jurisdiction to purposes of " safety and police," — by which I should be disposed to understand measures for the protection of the territory, and fur the regulation of the navigation, and the use of harbors and roadsteads, and the maintenance of order among the shipping therein, rather than the general application of the criminal law. Other authors — for instance, Mr. Manning — would restrict the jurisdiction to certain specified purposes in which the local state has an immediate interest, namely, the protection of its revenue and fish- eries, the exacting of harbor aud light dues, and the protection of its coasts in time of war. Some of these authors — for instance, Professor Bluntschli — make a most important distinction between a commorant and a passing ship. According to this author, while the commorant ship is subject to the general law of the local state, the passing ship is liable to the local jurisdiction only in matters of "military and police regulations, made for the safety of the territory and population of the coast." None of these writers, it should be noted, discuss the question, or go the length of asserting that a foreigner in a foreign ship, using the waters in question for the purpose of navigation solely, on its way to another country-, is liable to the criminal law of the adjoining country for an offence committed on board. Now, when it is remembered that it is mainly on the statements and authority of these writers, and to opinions founded upon them, that we are called upon to hold that foreigners on the so-called territorial sea are subject to the general law T of this country, the discrepancy of opin- ion which I have been pointing out becomes very material. Looking to this, we may properly ask' those who contend for the application of the existing law to the littoral sea independently of legislation, to tell us the extent to which we are to go in applying it. Are we to limit it to three miles, or to extend it to six ? Are we to treat the whole body of the criminal law as applicable to it. or only so much as relates to " police and safety"? Or are we to limit \t, as one of these authors proposes, to the protection of fisheries and customs, the exacting of harbor and light dues, and the protection of our coasts in time of war? Which of these writers are we to follow? What is there in these conflicting views to guide us. in the total absence of precedent or legal sanction, as to the extent to which we may subject foreigners \t> our law? What is there in them which authorizes us to assume not only that Parliament can of right deal with the three-mile zone as forming part of our territory, but also that, by the mere assent of othei nations, the sea to this extent has become so completely a part of 0U1 6 KEGINA V. KEYN. [CHAP. I. territory as to be subject, without legislation, to the whole body of our existing law, civil and criminal? But it is said that, although the writers on international law are disagreed on so many essential points, they are all agreed as to the power of a littoral state to deal with the three-mile zone as subject to its dominion, and that consequently we may treat it as subject to our law. But this reasoning strikes me as unsatisfactory ; for what does this unanimity in the general avail us when we come to the practical application of the law in the particular instance, if we are left wholly in the dark as to the degree to which the law can be legitimately enforced? This unanimity of opinion that the littoral sea is, at all events for some purposes, subject to the dominion of the local state, may go far to show that, by the concurrence of other nations, such a state may deal with these waters as subject to its legislation. But it wholly fails to show that, in the absence of such legislation, the ordinary law of the local state will extend over the waters in question, — which is the point which we have to determine. Not altogether uninfluenced, perhaps, by the diversity of opinion to which I have called attention, the argument in support of the prosecu- tion presents itself — not without some sacrifice of consistency — in more than one shape. At one time it is asserted that, for the space of three miles, not only the sea itself, but the bed on which it rests, forms part of the territory or realm of the country owning the coast, as though it were so much land ; so that the right of passage and anchorage might be of right denied to the ships of other nations. At another time it is said that, while the right is of a territorial character, it is subject to a right of passage by the ships of other nations. Sometimes the sovereignty is asserted, not as based on territorial right, but simply as attaching to the sea, over which it is contended that the nation owning the coast may extend its law to the foreigner navigating within it. To those who assert that, to the extent of three miles from the coast, the sea forms part of the realm of England, the question ma}* well be put, when did it become so? Was it so from the beginning? It cer- tainly was not deemed to be so as to a three-mile zone, any more than as to the rest of the high seas, at the time the statutes of Richard II. were passed. For in those statutes a clear distinction is made between the realm and the sea, as also between the bodies of counties and the sea ; the jurisdiction of the admiral being (subject to the exception already stated as to murder and mayhem) confined strictlj' to the latter, and its exercise "within the realm" prohibited in terms. The lan- guage of the first of these statutes is especially remarkable : — "The admirals and their deputies shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea." It is impossible not to be struck b}'the distinction here taken between the realm of England and the sea ; or, when the two statutes are taken SECT. I.] REGINA V. KEYX. 7 together, not to see that the term "realm," used in the first statute, and " bodies of counties," the term used in the second statute, mean one and the same thing. In these statutes the jurisdiction of the admiral is restricted to the high seas, and, in respect of murder and mayhem, to the great rivers below the bridges, while whatever is within the realm, in other words, within the body of a county, is left within the domain of the common law. But there is no distinction taken be- tween one part of the high sea and another. The three-mile zone is no more dealt with as within the realm than the seas at large. The notion of a three-mile zone was in those days in the womb of time. When its origin is traced, it is found to be of comparatively modern growth. The first mention of it by any writer, or in any court of this country, so far as I am aware, was made by Lord Stowell, with refer- ence to a question of neutral rights, in the first year of the present cen- tury, in the case of The Twee Gebroeders, 3 C. Rob. 162. To this hour it has not, even in theory, yet settled into certainty. For centuries before it was thought of, the great landmarks of our judicial system had been set fast — the jurisdiction of the common law over the land and the inland waters contained within it, forming together the realm of England, that of the admiral over English vessels on the seas, the common property or highway of mankind. But I am met by authority, and, beyond question, ancient authority, may be found in abundance for the assertion that the bed of the sea is part of the realm of England, part of the territorial possessions of the Crown. Coke, commenting on § 439 of Littleton, says, in explaining the words " out of the realm " : — '• If a man be upon the sea of England, he is within the kingdom or realme of England, and within the ligeance of the King of England, as of his crowne of England. And yet altum mare is out of the juris- diction of the common law, and within the jurisdiction of the lord admirall." So Lord Hale, no doubt, in his work De Jure Maris, speaks of the narrow seas, and the soil thereof, as "part of the King's waste, demesnes, and dominions, whether in the body of a county or not." But this was said, not with reference to the theory of the three-mile zone, which had not then been thought of, but (following Selden) to the wild notion of sovereignty over the whole of the narrow seas. This pretension failing, the rest of the doctrine, as it seems to me, falls with it. Moreover, Hale stops short of saying that the bed of the sea forms part of the realm of England, us a portion of its territory. He speaks of it under the vague terms of "waste," "demesnes," or " dominions." He carefully distinguishes between the pails of the sea which are within the body of a county and those which are not. It is true that, in his later work on the Pleas of the Crown, Lord Hale, Bpeaking in the chapter on Treasons (vol. i. p. 154), of what is a levying of war against the King " within the realm," according to the 8 KEGIXA V. KEYN. [CHAP. I. required averment in an indictment for that offence, instances the hostile invasion of the King's ships ("which," he observes, "are so many royal castles") ; and this, he says, " is a levying of war within the realm ; " the reason he assigns being that " the narrow seas are of the ligeance of the Crown of England," for which he cites the author- ity of Selden. Here, again, we have Lord Hale blindly following " Master Selden," in asserting that the narrow seas owe allegiance to the Crown of England. A hostile attack by a subject on a ship of war on the narrow seas would, I need scarcely say, be a levying of war against the sovereign, but it could not now be said to be high treason as having been done within the realm. Blackstone (Coram, vol. i. p. 110) says that "the main or high seas " (which he afterwards describes as beginning at low-water mark) " are part of the realm of England," — here Mr. Stephen, feeling that his author was going too far, interposes the words " in one sense," — " for thereon," adds Blackstone, " our courts of Admiralty have juris- diction ; but they are not subject to the common law." This is, in- deed, singular reasoning. Instead of saying that, because these seas are part of the realm of England, the Courts of Admiralty have juris- diction over them, the writer reverses the position, and says, that because the Admiralty has jurisdiction these seas are part of the realm, — which certainly does not follow. If it did, as the jurisdiction of the Admiralty extended, as regards British ships, wherever the sea rolls, the entire ocean might be said to be within the realm. But to what, after all, do these ancient authorities amount? Of what avail are they towards establishing that the soil in the three-mile zone is part of the territorial domain of the Crown? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists? What English lawyer is there who would not shrink from maintaining — what foreign jurist who would not deny — what foreign government which would not repel such a pretension? I listened carefully to see whether any such asser- tion would be made ; but none was made. No one has gone the length of suggesting, much less of openly asserting, that the jurisdic- tion still exists. It seems to me to follow that when the sovereignt}' and jurisdiction from which the propert}- in the soil of the sea was in- ferred is gone, the territorial propert} - which was suggested to be con- sequent upon it must necessarih* go with it. But we are met here by a subtle and ingenious argument. It is said that although the doctrine of the criminal jurisdiction of the admiral over foreigners on the four seas has died out, and can no longer be upheld, yet, as now, b} - the consent of other nations, sovereignty over this territorial sea is conceded to us, the jurisdiction formerly asserted ma}* be revived and made to attach to the newly-acquired domain. T am unable to adopt this reasoning. Ex concessis, the jurisdiction over SECT. I.J REGINA V. KFA'.N. 9 foreigners in foreign ships never really existed, at all events, it has long been dead and buried, even the ghost of it has been laid. But it is evoked from its grave and brought to life for the purpose of apply- ing it to a part of the sea which was included in the whole, as to which it is now practically admitted that it never existed. From the time the jurisdiction was asserted to the time when the pretension to it was dropped, it was asserted over this portion of the sea as part of the whole to which the jurisdiction was said to extend. If it was bad as to the whole indiscriminately, it was bad as to every part of the whole, lint why was it bad as to the whole? Simply because the jurisdiction did not extend to foreigners in foreign ships on the high seas. But the waters in question have always formed part of the high seas. They are alleged in this indictment to be so now. How, then, can the admiral have the jurisdiction over them contended for if he had it not before? There having been no new statute conferring it, how has he acquired it? To come back to the subject of the realm. I cannot help thinking that some confusion arises from the term " realm " being used in more than one sense. Sometimes it is used, as in the statute of Richard II., to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England ex- tended, or was supposed to extend, over. When it is used as synonymous with territory, I take the true mean- ing of the term "realm of England" to be the territory to and over which the common law of England extends — in other words, all that is within the body of any county — to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of Richard II. between the realm and the sea. For centuries our judi- cial system in the administration of the criminal law has been divided into two distinct and independent branches, the one having jurisdiction over the land and any sea considered to be within the land ; the other over the sea external to the land. No concurrent assent of nations, that a portion of what before was treated as the high sea, and as surh common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of Parliament, convert that which before was in the eye of the law high sea into British terri- tory, and so change the law. or give to the courts of this country, inde- pendently of legislation, a jurisdiction over the foreigner where they had it not before. The argument in support of the contrary appeals to me, I must say, singularly inconsistent with itself; According t<> it the littoral sea is made to assume what I cannot help calling an amphib- ious character. Atone time it is land, at another it is water. Is it desired to apply the law of the shore to it, so a. to make the foreigner subject to that law? — it becomes so much territory. Do you wish f<> 10 REGINA V. KEYN. [CHAP. I. keep it within the jurisdiction of the admiral, as you must do to up« hold this indictment? — it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of Great Britain is fatal to the argument which it is intended to support. For, if the sea thus becomes part of the territory, as though it were actually inter fauces terrce, it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the Admiralty jurisdiction. The littoral sea cannot be land for one pur- pose and high sea for another. Nor is anything gained by substituting the term " territory " for land. The law of England knows but of one territory, — that which is within the body of a county. All beyond it is the high sea, which is out of the province of English law as applicable to the shore, and to which that law cannot be extended except by legislation. It does not appear to me that the argument for the prosecution is ad- vanced by reference to encroachments on the sea, in the way of har- bors, piers, breakwaters, and the like, even when projected into the open sea, or of forts erected in it, as is the case in the Solent. Where the sea, or the bed on which it rests, can be physically occupied per- manently, it may be made subject to occupation in the same manner as unoccupied territory. In point of fact, such encroachments are gen- erally made for the benefit of the navigation ; and are therefore read- ily acquiesced in. Or they are for the purposes of defence, and come within the principle that a nation may do what is necessary for the pro- tection of its own territory. Whether, if an encroachment on the sea were such as to obstruct the navigation to the ships of other nations, it would not amount to a just cause of complaint, as inconsistent with international rights, might, if the case arose, be deserving of serious consideration. That such encroachments are occasionally made seems to me to fall very far short of establishing such an exclusive property in the littoral sea as that, in the absence of legislation, it can be treated, to all intents and purposes, as part of the realm. Again, the fact, adverted to in the course of the discussion, that in the west of England mines have been run out under the bed of the sea to beyond low-water mark, seems to me to avail but little towards the decision of the question of territorial property in the littoral sea. But for the Act of 21 & 22 Vict. c. 109, to which our attention has been specially directed, I should have thought the matter simple enough. Between high and low water mark the property in the soil is in the Crown, and it is to be assumed that it is by grant or license from the Crown, or by prescription, which presupposes a grant, tnat a mine is carried beneath it. Beyond low-water mark the bed of the sea might, I should have thought, be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier. I should not have thought that the carrying one or two mines into the SECT. I.] BEGINA V. KF.VN. 11 bed of the sea beyond low-water mark could have any real bearing on a question of international law like the present. But the Act just referred to, and the circunistanccs out of which it arose, have been brought impressively to our attention by the Lord Chief Justice of the Common Picas, as showing that, according to par- liamentary exposition, the bed of the sea beyond low-water mark is in the Crown, I cannot help thinking that, when the matter comes to be looked at a little more closely, it will be found that the facts by no means warrant this conclusion. The Duchy of Cornwall, which is vested in His Royal Highness the Prince of Wales, extends, as is known, to low-water mark. Mines existing under the bed of the sea within the low-water mark having been carried out beyond it, a question was raisetl on the part of the Crown as to whether the minerals beyond the low-water mark, and not within the county of Cornwall, as also those lying under the sea-shore between high and low-water mark within the count}' of Cornwall, and under the estuaries and tidal rivers within the county, did not belong to the Crown. The matter having been referred to Sir John Patteson, his decision as to the mines and minerals below low-water mark was in favor of the Crown ; with reference to tlie others, in favor of the duchy. Not having had the advantage of see- ing Sir John Patteson's award, I am unaware whether the precise grounds on which his decision proceeded are stated in it, but the terms in which it was framed may be gathered with perfect precision from the recitals of the Act of Parliament which, b}' arrangement, was passed shortly afterwards to give statutory effect to the award. From the recitals in the preamble to the Act it appears that the award was very carefully, I may say cautiously, drawn. After stating the matter in dispute, and the reference to Sir John Patteson, the preamble goes on to recite that the arbitrator had decided, — " First, that the right to all mines and minerals lying under the sea- shore between high and low-water marks within the said county of Cornwall, and under estuaries and tidal rivers, and other places, even below low water mark, being in and part of the said county, is vested in His Royal Highness as part of the soil and territorial posses- sions of the Duchy of Cornwall. Secondly, that the right to all mines and minerals lying below low-water mark, under the open sea adjacent to, but not being part of, the county of Cornwall, is vested in llei Majesty the Queen in righl of her Crown, although such minerals may or might be won by workings commenced above low-water mark and extended below it." The difference between the two parts of this recital is at once appar- ent. When dealing with that which is within low-water mark, the award declares the right to the mines and minerals under the sea-shoro to be vested in His Royal Highness "as part of the soil and territo- rial possessions of the Duchy of Cornwall." But when the learned arbitrator comes to deal with the mines and minerals below low-watei 12 REGINA V. KEYN [CHAP. I. mark, he stops short of saying that these mines and minerals belong to Her Majesty by virtue of any ownership in the soil. He confines him- self to awarding that the right to such mines and minerals is vested in Her Majesty " in right of her Crown." What the grounds were on which this decision was based I can only conjecture. Sir John Patteson may have held, on the authority of Collis (p. 53), that a subject cannot have any ownership in the soil below low-water mark, — and, though standing next to the Throne, the Prince of Wales is stdl a subject,— and that, as between the Crown and a subject as regards property in or under the open sea, the Crown had the better right. Or the deci- sion may have been founded on the peculiar constitution of the Duchy of Cornwall, which is settled by Act of Parliament and occasionally reverts to the Crown. I cannot help thinking that If the arbitrator had proceeded on the ground that the bed of the sea below low-water mark belonged to the Crown, he would have said so, as he had just be- fore done with reference to the soil above low-water mark. It is true that, when we come to the enacting part of the statute, that which had been left unsaid by Sir John Patteson is supplied. The mines and minerals beyond low-water mark are enacted and declared to be in the Queen, in right of her Crown, as part of the soil and possessions of the Crown, just as the mines and minerals within low-water mark are stated to be vested in the Prince of Wales as Duke of Cornwall, in right of the Duchy of Cornwall, as part of the soil and possessions of the duchy. But it is expressly declared that this is to be taken to be so only " as between the Queen in light of her Crown, and the Prince of Wales in right of the Duchy of Cornwall," and the rights of all other persons are expressly preserved. I am surprised, I own, that we should be asked to look on this piece of legislation as a parliamentary recognition of the universal right of the Crown to the ownership of the bed of the sea below low-water mark. This was a bill for the settle- ment of the question as to the right to particular mines and minerals between the Crown and the duchy, a measure in which both the royal personages particularly concerned and their respective advisers con- curred, and in which no other person whatever was interested. To what member of Parliament, even the most eccentric, could it possibly have occurred to raise an objection to it on the ground that it involved an assertion of the Queen's right of property in the bed of the sea? To whom would it occur that, in passing it, Parliament was asserting the right of the Crown to the bed of the sea over the three-mile dis- tance, instead of settling a dispute as to the specific mines which were in question? With the most unfeigned respect for my learned col- league, I cannot but think that he has attached to this piece of legisla- tion a degree of importance to which it is by no means entitled. It thus appearing, as it seems to me, that the littoral sea beyond low-water mark did not, as distinguished from the rest of the high seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so? Can a portion SLOT. L] EEGINA V. KEYN. 13 of that which was before high sea have been converted into British ter- ritory, without any action on the part of the British Government or legislature — by the mere assertions of writers on public law — or even by the assent of other nations? And when in support of this position, or of the theory of the three- mile zone in general, the statements of the writers on international law are relied on. the question may well be asked, upon what authority are these statements founded? "When and in what manner have the nations, who are to be affected by such a rule as these writers, following one another, have laid down, signified their assent to it? to say nothing of the difficult}- which might be found in saying to which of these con- flicting opinions such assent had been given. For, even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much/liscrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or ma}' be implied from established usage, — an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless suffi- cient to give the power of parliamentary legislation in a matter other- wise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas. When I am told thai all other nations have assented to such an abso- lute dominion on the part of the littoral state, over this portion of the sea, as that their ships may be excluded from it. and that, -without any open legislation, or notice to them or their subjects, the latter may be held liable to the local law. I ask. first, what proof there is of such assent as here asserted ; and. secondly, to whal extent has such assent been carried? a que tion of infinite importance, when, undirected by legislation, we are called upon to apply the law on the strength of such 14 KEGINA V. KEYN. [CHAP. L assent. It is said that we are to take the statements of the publicists as conclusive proof of the assent in question, and much has been said to impress on us the respect which is due to their authority, and that the}' are to be looked upon as witnesses of the facts to which they speak, witnesses whose statements, or the foundation on which those statements rest, we are scarcely at liberty to question. I demur alto- gether to this position. I entertain a profound respect for the opinion of jurists when dealing with the matters of juridical principle and opin- ion, but we are here dealing with a question not of opinion, but of fact, and I must assert my entire liberty to examine the evidence and see upon what foundation these statements are based. The question is not one of theoretical opinion, but of fact, and, fortunately, the writers upon whose statements we are called upon to act have afforded us the means of testing those statements by reference to facts. The} 7 refer us to two things, and to these alone, — treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the state shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in the ships of other nations, has never been made the subject- matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic dis- cussion. It has been entirely the creation of the writers on interna- tional law. It is true that the writers who have been cited constantly refer to treaties in support of the doctrine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only, — the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on international law as to adopt the three-miles range as a con- venient distance. There are several treaties b} r which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other's coasts as neutral terri- tory, within which no warlike operations should be carried on ; instances of which will be found in the various treatises on international law. Thus, for instance, in the treaties of commerce, between Great Brit- ain and France, of September,. 1786 ; between France and Russia, of January, 1787 ; between Great Britain and the United States, of Octo- ber, 1794, each contracting party engages, if at war with any other nation, not to carry on hostilities within cannon-shot of the coast of the other contracting party ; or, if the other should be at war, not to allow its vessels to be captured within the like distance. There are many other treaties of the like tenor, a list of which is given by Azuni (vol. ii. p. 78) ; and various ordinances and laws have been made by the different states in order to give effect to them. SECT. L] REGINA V. KF.VN. 15 Again, nations, possessing opposite or neighboring coasts, bordering on a common sea, have sometimes foil ml it expedient to agree that the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, ami here also have accepted the three miles as a convenient distance. Such, for instance, are the trea- ties made between this country and the United States in relation to the fishery off the coast of Newfoundland, and those between this country and France in relation to the fishery on their respective shores ; and local laws have been passed to give effect to these engagements. But in all these treaties this distance is adopted, not as matter of existing right established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doc- trine contended for, the fact of these treaties having been entered into has rather the opposite tendency : for it is obvious that, if the territo- rial right of a nation bordering on the sea to this portion of the adja- cent waters had been established b}- the common assent of nations, these treaty arrangements would have been wholly superfluous. Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as much as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with international law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty. For what object, then, have treaties been resorted to? Manifestly in order to obviate all questions as to concurrent or conflicting rights arising under the law of nations. Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging, for these purposes, to the local state. But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have therefore assented to forego all other rights previously enjoyed in common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local sov- ereign, and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in ships within three miles of the const, of another shall be in all respects subject to the law of the hitter. It may be that the maritime nations of die world are prepared to acquiesce in the appropriation of the littoral sea; but I cannot think that these. treaties help us much towards arriving at, the conclusion that this appropriation has actually taken place. At all events, the question remains, whether judicially we can infer that the nations who have been parties to these treaties, and still further those who have 16 REGINA V. KKYN. [CHAP. I. not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the criminal law of this country. The uncertainty in which we are left, so far as judicial knowledge is concerned, as to the extent of such assent, likewise presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of the, to my mind, still more serious difficulty, that we should be assuming it without legislative warrant. So much for treaties. Then how stands the matter as to usage, to which reference is so frequently made by the publicists in support of their doctrine? When the matter is looked into, the only usage found to exist is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined. Usage as to the application of the general law of the local state to foreigners on the littoral sea there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of naviga- tion, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of the matters to which I have just referred. Nor have the tribunals of an}' nation held foreigners in these waters amenable gen- erally to the local criminal law in respect of offences. It is for the first time in the annals of jurisprudence that a court of justice is now called upon to apply the criminal law of the country to such a case as the present. It may well be, I say again, that — after all that has been said and done in this respect — after the instances which have been mentioned of the adoption of the three-mile distance, and the repeated assertion of this doctrine by the writers on public law, a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other nations. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but, from the acquies- cence of other states, some outward manifestation of the national will, in the shape of open practice or municipal legislation, so as to amount, at least constructively, to an occupation of that which was be- fore unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control. That such legislation, whether consistent with the general law of nations or not, would be binding on the tribunals of this country — leaving the question of its consistency with international law to be determined between the governments of the respective nations — can of course admit of no doubt. The question is whether such legislation would not, at all events, be necessary to justify our courts in applying the law of this country to foreigners under entirely novel circumstances in which it has never been applied before. SECT. I.] RBGINA V. KKYN. 17 It is obviously one thing to say that the legislature of a nation may. from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea. and as such common to all the world ; another and a very different thing to say that the law of the local state becomes thereby at once, without any- thing more, applicable to foreigners within such part, or that, indepen- dently of legislation, the courts of the local state can proprio rlgore so apply it. The one position does not follow from the other; and it is essential to keep the two things, the power of Parliament to legislate, and the authority of our courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct, which, it is evident, is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specifically liable to oui law by statutory enactment that that law can be applied to them. 1 But the difficulties which stand in the way of the prosecution arc not yet exhausted. A technical difficulty presents itself, which appears to be of a formidable character. Assuming everything, short of the ultimate conclusion, to be conceded to the prosecution — granting that the three-mile zone forms part of the territory or realm of England, and that without parliamentary interference the territorial sea has become part of the realm of England, so that jurisdiction has been acquired over it, the question arises, — In whom is the jurisdiction? The indict- ment alleges that the offence was committed on the high seas. To sup port this averment the place in question must still remain part of the high sea. But if it is to be held to be the high sea, and so within the jurisdiction of the admiral, the prosecution fails, if the admiral never had jurisdiction over foreigners in foreign ships, the proof of which totally fails, and the negative of which, I think, must be considered as established : and no assent on the part of foreign nations to the exer- cise of dominion and jurisdiction over these waters can, without an Act of Parliament, confer on the admiral or any other judge of this country a larger jurisdiction than he possessed before. If the littoral sea is to be considered territory— in other w<>nls. no longer high sea — the present, indictment fails, and this, whether the part In question has become part of a county or not. The only distinction known to the law of England, as regards the sea, is between such part of the sea 1 The learned Chief Justice then examined the statutes and decided thai there mus no (statutory jurisdiction in this ease. — Ed. 18 EEGINA V. KEYN. [CHAP. L as is within the body of a county and such as is not. In the first there is jurisdiction over the foreigner on a foreign ship ; in the other, there is not. Such a thing as sea which shall be at one and the same time high sea and also part of the territory of the realm, is unknown to the present law, and never had an existence, except in the old and sense- less theory of a universal dominion over the narrow seas. To put this shortly. To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction of the admiral. But the admiral never had criminal juris- diction over foreign ships on the high seas. How, when exercising the functions of a British judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorized by statute? On the other hand, if this sea is to be consid- ered as territory, so as to make a foreigner within it liable to the law of England, it cannot come under the jurisdiction of the Admiralty. In the result, looking to the fact that all pretension to sovereignty or jurisdiction over foreign ships in the narrow seas has long since been wholly abandoned — to the uncertainty which attaches to the doc- trine of the publicists as to the degree of sovereignty and jurisdiction which may be exercised on the so-called territorial sea — to the fact that the right of absolute sovereignty therein, and of penal jurisdiction over the subjects of other states, has never been expressly asserted or conceded among independent nations, or, in practice, exercised and acquiesced in, except for violation of neutrality or breach of revenue or fishery laws, which, as has been pointed out, stand on a different foot- ing — as well as to the fact that, neither in legislating with reference to shipping, nor in respect of the criminal law, has Parliament thought proper to assume territorial sovereignty over the three-mile zone, so as to enact that all offences committed upon it, b}' foreigners in foreign ships, should be within the criminal law of this country, but, on the contrary, wherever it was thought right to make the foreigner amenable to our law, has done so by express and specific legislation — I cannot think that, in the absence of all precedent, and of any judicial decision or authority applicable to the present purpose, we should be justified in holding an offence, committed under such circumstances, to be punish- able by the law of England, especially as in so holding we must declare the whole body of our penal law to be applicable to the foreigner pass- ing our shores in a foreign vessel on his way to a foreign port. I am by no means insensible to the argument ab inconveniently pressed upon us by the Solicitor-General. It is, no doubt, desirable, looking to the frequency of collisions in the neighborhood of our coasts, that the commanders of foreign vessels, who, by unskilful navigation or gross want of care, cause disaster or death, should be as much amenable to the local law as those navigating our own vessels, instead of redress having to be sought in the, perhaps, distant country of the offender. But the remedy for the deficiency of the law, if it can be made good consistently with international law, — as to which we are not CHAP. I.] REGINA V. KEYN. 10 called upon to pronounce an opinion, — should he supplied by the action of the legislature, with whom the responsibility for any imperfection of the law alone rests, not by a usurpation on our part of a jurisdiction which, without Legislation, we do not judicially possess. This matter has been sometimes discussed upon the assumption that the alternative of the non-exercise of jurisdiction on the part of our courts must be the total impunity of foreigners in respect of collision arising from negligence in the vicinity of our coast. But this is a mis- taken view. If by the assent of other nations the three-mile belt of sea has been brought under the dominion of this country, so that con- sistently with the right of other nations it may be treated as a portion of British territory, which, of course, is assumed as the foundation of the jurisdiction which the courts of law are here called upon to exercise, it follows that Parliament can legislate in respect of it. Parliament has only to do so, and the judges of the land will, of course, as in duty bound, give full effect to the law which Parliament shall so create. 1 Coleridge, C. J. I agree in thinking it clear that unless the place where the offence was committed was part of the realm of England locally, or unless the offence itself was committed on board a British ship, whether the British ship was locally within the realm of England, or without it, the conviction cannot stand. But first, I think the offence was committed within the realm of England ; and if so, there was jurisdiction to try it. Whether there was any jurisdiction, and if there were, what particular court was to exercise it, are two separate questions ; and I am here concerned only with the former. Now the offence was committed much nearer to the line of low-water mark than three miles, and, therefore, in my opinion, upon English territory. I pass by for the moment the question of the exact limit of the realm of England beyond low-water mark. I am of opinion that it does go beyond low-water mark, and if it does, no limit has ever been sug- gested which could exclude from the realm the place where this offence was committed. But for the difference of opinion upon the bench and for the great deference which is due to those who differ from me. I should have said it was impossible to hold that England ended with low-water mark. I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm, how far soever it pleases to extend it by enactments, :ii least so :ts to bind the tribunals of the country; and I admit equally freely thai no statute has in plain terms, or by definite limits, so extended it. But, in my judgment, no Act of Parliament was required. The proposition con tended for, as I understand, ia that for any ad, of violence committed by a foreigner upon an English subject within a few feet of low-water a Tart of tli*- opinion is omitted. Bramwell, -I. A., Kelly, c. B., Lush, J., and sir R. Phillimore delivered opinions concurring with thai of Cookburh, C. J. Pollock, I'.., and I'ni D, .1. a] ■< concurred. Brett and Amphlf.tt, JJ. A., Denm in, Grove and Lindi i y, •'•'., delivered opin- ions concurring with that of ' olerido] , C. J. — En. 20 EEGINA V. KEYN. [CHAP- I mark, unless it happens on board a British ship, the foreigner cannot be tried, and is dispunishable. As I understand the proposition, it follows, further, that even if the English subject be an officer of the Crown, and the violence is committed by the foreigner in resisting the English officer in the execution of duties which the penal or police laws of the country compel him to perform, laws to which it is admit- ted this country has for a series of years subjected her coast waters, still the consequence is the same, and the act of resistance, though resulting in the death of the officer, unless it takes place on board a British ship, cannot be made the subject of any criminal proceeding in any court of the country where the officer has been outraged. This it is said has always been the law, and it is the law now. The argument ab inconvenient i is perhaps not one which sound logic recognizes, and a startling conclusion does not always show that the premises from which it follows are untenable. But the incon- venience here is so grave, and the conclusion so startling, as to make it reasonable, I think, to say that the burden of proof lies heavy upon those who disregard the inconvenience, and maintain the conclusion. Now my brothers Brett and Lindley have shown that by a consensus of writers, without one single authority to the contrary, some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash. I concur in thinking that the discrepancies to be found in these writers as to the precise extent of the coast waters which belong to a country (discrepancies, after all, not serious since the time at least of Grotius) are not material in this question ; because they all agree in the princi- ple that the waters, to some point beyond low-water mark, belong to the respective countries, on grounds of sense if not of necessity, belong to them as territory of sovereignty, in property, exclusively, so that the authority of France or Spain, of Holland or England, is the only authority recognized over the coast waters which adjoin these coun- tries. This is established as solidly as, by the very nature of the case, any proposition of international law can be. Strictly speaking, in- ternational law is an inexact expression, and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common lawgiver to sovereign states ; and no tribunal has the power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not, in this country at least, per se bind the tribunals. Neither, certainly, does a consensus of jurists ; but it is evidence of the agreement of nations on international points ; and on such points, when they arise, the English courts give effect, as part of Euglish law, to such agreement. Regarding jurists, SECT. I.] REGINA V. KEYX. 21 then , in the light of witnesses, it is their competency rather than their ability which most concerns us. We find a number of men of education, of many different nations, raosl of them quite uninterested in main- taining any particular thesis as to the matter now in question, agreeing generally for nearly three centuries in the proposition that the territory of a maritime country extends beyond low-water mark. I can hardly myself conceive stronger evidence to show that, as far as it depends on the agreement of nations, the territory of maritime countries docs so extend. For myself I must add that, besides their competency. 1 have the greatest respect and admiration for the character and abilities of such of these writers as I am personally familiar with. It is not dilli- cult in the works of a voluminous writer, or indeed of any writer, nay, even in the reported judgments of great judges, to find statements exaggerated, or untenable, beliefs which lapse of time has shown to be unwise, prejudices which must always have been foolish. But these things do not detract from the just authority of distinguished men, and, if the matter were to be determined for the first time, I should not hesi- tate to hold that civilized nations had agreed to this prolongation of the territory of maritime states, upon the authority of the writers who have been cited in this argument as laying down the affirmative of this proposition. But it is not now to be done for the first time. For from the two judgments to which I have already had occasion to refer it sufficiently appears that a number of English judges, of the very highest authority, have themselves accepted and acted upon the author- ity of these jurists. Lord Talbot, Lord Hardwicke, Lord Mansfield, Lord Stowell, and Dr. Lushington, form altogether a body of judges sufficient to support the authority of the writers upon whom they relied. Furthermore, it has been shown that English judges have held repeat- edly that these coast waters are portions of the realm. It is true that this particular point does not seem ever distinctly to have arisen. But Lord Coke, Lord Stowell. Dr. Lushington, Lord Ilatherley, L. C, Erie, C. J., and Lord Wensleydale (and the catalogue might be largely extended) have all, not hastily, but in writing, in prepared and delib- erate judgments, as part of the reasoning necessary to support their conclusions, used language, some of them repeatedly, which 1 am unable to construe, excepl as asserting, on the part of these eminent persons, that the realm of England, the territory of England, the property of the State and Crown of England over the water and the land beneath it, extends at leasl so far beyond the line of low water on the English coast as to include the place where this offence was committed. I should only waste time if 1 were to go through again the cases which my learned brothers have bo fully and so accurately examined. It is, 1 presume, competent for the court to overrule those cases; but at least it must be admitted that they decide as much ae this. It is, perhaps, referring to weaker authorities in order t<» sup- port stronger ones; but I will add that the English and American text writers, and two at least, of the most eminent American jn.l 22 KEGINA V. KEYN. [CHAP. I Marshall and Story, have held the same thing. Further, at least in one remarkable instance, the British Parliament has declared and enacted this to be the law. In the present reign two questions arose between Her Majesty and the Prince of Wales as to the property in minerals below high-water mark around the coast of Cornwall. The first question was as tc the property in minerals between high and low-water mark around the coasts of that county, and as to the property in minerals below low-water mark won by an extension of workings begun above low-water mark. This was referred by Lord Chancellor Cranworth on the part of Her Majesty, and by Lord Kingsdown, the then Chancellor of the Duchy, on the part of the Prince of Wales, to the arbitration of Sir John Patteson. His decision led to the passing of an Act of Parliament. And a further question as to the minerals below low-water mark was referred by Lord Selborne, then Sir Eoundell Palmer, the Queen's Attorney-General, and Sir William Alexander, the Attorney- General to the Prince of Wales, to the arbitration of Sir John Coleridge. All the proceedings in both references were in writing, and by the kindness of \ r iscount Portman, the present Lord Warden of the Stannaries, I have been furnished with copies of the whole of them. As might be expected from the known characters of the persons who drew and settled all the statements in both cases, the greatest learning and ability were displayed in them ; most of the authorities cited before us are cited in the arguments on behalf of the Crown and the Prince of Wales, and some others of con- siderable importance not cited to us are cited there. The whole argu- ment on the part of the Crown was founded on the proposition that the fundus maris below low-water mark, and therefore beyond the limits of the county of Cornwall, belonged in property to the Crown. The Prince was in possession of the disputed mines ; he had worked them from land undoubtedly his own, and, therefore, unless the Crown had a right of property in the bed of the sea, not as first occupier, for the prince was first occupier, and was in occupation, the Crown must have failed. The argument on behalf of the Duchy was twofold : first, that all which adjoined and was connected with the County of Corn- wall passed to the Dukes of Cornwall under the terms of the original grant to them at the time of the creation of the Duchy ; and, therefore, that even if the bed of the sea elsewhere belonged to the Crown, it had passed from the Crown to the duke in the seas adjacent to Cornwall ; secondly, that the bed of the sea did not belong to the Crown, aud that the prince was entitled, as first occupier, to the mines thereunder. I pass by, as not relevant to the present inquiry, the argument as to the property in the soil between high and low water, aud I omit Sir John Patteson's decision on that point in favor of the Duchy as not material. On the second point he thus expressed himself : — " I am of opinion, and so decide, that the right to the minerals below low-water mark remains and is vested in the Crown, although those minerals may be won by workings commenced above low-water mark and extended below it." SECT. I.] BEGINA V. KKVX. 23 And be recommended the passing of an Act of Parliament to give practical effect to his decision, so far as it was in favor of the Crown. The Act of Parliament accordingly was passed, the 21 & 22 Viet. c. 109, a public Act. By s. 2 it is not merely enacted, but declared and enacted as follows : — "All mines and minerals lying below low-water mark under the open sea adjacent to but not being part of the County of Cornwall arc. as between the Queen's Majesty, in right of her Crown, on the one hand, and His Royal Highness Albeit Edward Prince of Wales and Duke of Cornwall, in right of his Duchy of Cornwall, on the other hand, vested in Her Majesty the Queen in right of her Crown as part of the soil and territorial possessions of the Crown." A subsequent question was raised as to minerals in the beds of estuaries below low-water mark, but, so to speak, intra fauces Cornu- hue; and this question, which arose after the death of Sir ,Iohn Patteson, was referred for decision to Sir John Coleridge. This de- cision was substantially in favor of the Prince, and the arguments in the former case were repeated before him ; but as he had to decide the matter after the passing of the Act of Parliament, and in truth as to the construction to be placed upon its clauses, it is not material to refer in detail to the words of his judgment and award. It is true, that the particular question between Her Majesty and the Prince of Wales, which arose in respect of the bed of the sea adjacent to the county of Cornwall, could not, as far as I know, arise in respect of the bed of the sea adjacent to any other county. But it might well arise between Her Majesty and private persons all round the British islands. The sov- ereign stands in no more peculiar relation to Cornwall than she does to Kent. There is no reason, legal or otherwise, as far as I am aware, why the bed of the sea "adjacent to but not part of the county of Cornwall" should be, and why the bed of the sea adjacent to, but not part of the county of Kent, where this offence was committed, should not be " part of the soil and territorial possession of the Crown," in the words of the Act of Parliament. Parliament did bul apply to a particular case, in order to settle a question between the two highest persons in the state, that which is and always lias been the law of this country. We have then fori' it seems the express and definite author- ity of Parliament for the proposition thai the realm docs not cud with low-water mark, but that the open sea and the lied of it are part of the realm and of the territory of the sovereign. If so it follows thai Brit- ish law is supreme over it. and that the law musl be administered by some tribunal. It cannot, lor the reasons assigned by my Brother Brett, be administered by the Judges of Oyer ami Terminer; it can be, and always could be, by the Admiralty, ami if by the Admiralty, then by the Central Criminal Court. I do ool feel much pressed by the Undoubted fact thai DO record can be found of the exercise of this particular authority. Cases of collision are nol often the subject of criminal inquiry, they do not often happen within local limite ■■> as to 24 WILDENHUS'S CASE. [CHAP. I raise this particular question. If they were cases of wanton violence they would in former days, I conceive, have been very summarily dis- posed of. Sometimes, no doubt, the fact that a jurisdiction has never been exercised is a strong argument against the existence of the juris- diction ; but the force of this argument varies with circumstances ; and though undoubtedly it is a matter to be considered, it does not, I think, in this case outweigh the arguments which establish its exist- ence. On the whole, therefore, I am of opinion on the first point that the conviction is right. I am of the same opinion, though with some doubt, upon the second, that is, that the offence was committed on board an English ship. If this had been murder it would, as I under- stand the law, be clear that the offence was so committed. I need cite no further authority than the case of Reg. v. Armstrong, 13 Cox Cr. C. 184, decided in 1875, by my lamented brother Archibald. I think I follow, and I am sure I feel the weight of, the reasoning which has brought the Lord Chief Justice to the opposite conclusion on this point. But on the whole, though not without some hesitation, I concur in the reasoning of mv brother Denman, and I think the same rule should apply in manslaughter which applies in murder. And on the second point, therefore, I am of opinion that the conviction was right and should be affirmed. 1 WILDENHUS'S CASE. Supreme Court of the United States. 1886. [Reported 120 U. S. 1.] This appeal brought up an application made to the Circuit Court of the United States for the District of New Jersey, by Charles Mali, the " Consul of His Majesty the King of the Belgians, for the States of New York and New Jersey, in the United States," for himself as such consul, "and in behalf of one Joseph Wildenhus, one Gionviennie Gobnbosich, and one John J. Ostenmeyer," for the release, upon a writ of habeas corpus, of Wildenhus, Gobnbosich, and Ostenmeyer from the custody of the keeper of the common jail of Hudson County, New Jersey, and their delivery to the consul, ''to be dealt with according to the law of Belgium." The facts on which the application rested were thus stated in the petition for the writ : — 11 Second. That on or about the sixth day of October, 1886, on board the Belgian steamship Noordland, there occurred an affray be- tween the said Joseph Wildenhus and one Fijens, wherein and whereby it is charged that the said Wildenhus stabbed with a knife and inflicted upon the said Fijens a mortal wound, of which he afterwards died. " Third. That the said Wildenhus is a subject of the Kingdom of 1 See also Ellis v. Mitchell (Supreme Court of Hong Kong, 1874), U. S. Foreign Relations, 1875, 600, and the accompanying diplomatic correspondence. — Ed. SECT. I.] WILD^NHUS'S CASK. 25 Belgium and has his domicil therein, and is one of bbe crew of the said steamship Noordland, and was such when the said affray occurred. " Fourth. That the said Fijens was also a subject of Belgium ami had his domicil and residence therein, and at the time of the said affray, as well as at the time of his subsequent death, was one of the crew of the said steamship. " .Fifth. That at, the time said affray occurred the said steamship Noordland was lying moored at the dock of the port of Jersey City, in said State of New Jersey. " 'Sixth. That the said affray occurred and ended wholly below the deck of the said steamship, and that the tranquillity of the said port of Jersey City was in nowise disturbed or endangered thereby. " /Seventh. That said affray occurred in the presence of several witnesses all of whom were ami still are of the crew of the said vessel, and that no other person or persons except those of the crew of said vessel were present or near by. •• -Eighth. Your petitioner therefore respectfully shows unto this honorable court that the said affray occurred outside of the jurisdiction of the said State of New Jersey. " Ninth. But, notwithstanding the foregoing facts, your petitioner respectfully further shows that the police authorities of Jersey City, in said State of New Jersey, have arrested the said Joseph Wildenhus, and also the said Gionviennie Gobnbosich and John J. Ostenmeyer, of the crew of the said vessel (one of whom is a quartermaster thereof), and that said Joseph Wildenhus has been committed by a police magis- trate, acting under the authority of the said state, to the common jail of the county of Hudson, on a charge of an indictable offence under the laws of the said State of New Jersey, and is now held in confinement by the keeper of the said jail, and that the others of the said crew arrested as aforesaid are also detained in custody and confinement :i> witnesses to testify in such proceedings as may hereafter be had against the said Wildenhus." Mr. Chief Justice Waite, 1 after stating the case as above reported. delivered the opinion of the court. By §s 751 and 753 of the Revised statutes the courts of the United States have power to issue writs of habeas <->>r/>us which shall extend to prisoners in jail when they are in " custody in violation of the Constitu- tion or a law or treaty of tin • United Stales, - ' and t he question we have to consider is, whether these prisoners are held in violation of the proi i -ions of the existing treaty between the United States and Belgium. It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless l>\ treaty or otherwise the two countries have come to some different understanding or agreement; for, as was -aid by Chief Justice .Mai' "O 1 The arguments and pari "I the opinion are omitted, i.ij. 26 WILDENHUS'S CASE. [CHAP. T. shall in The Exchange, 7 Cranch, 116, 144, " it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such . . . merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country." United States v. Diekel- man, 92 U. S. 520 ; 1 Phillimore's Int. Law, 3d ed. 483, § 351 ; Tvviss' Law of Nations in Time of Peace, 229, § 159 ; Creasy's Int. Law, 1G7, § 176 ; Halleck's Int. Law, 1st ed. 171. And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cunningham, Bell C. C. 72 ; s. c. 8 Cox C. C. 104 ; Regina v. Anderson, 11 Cox C. C. 198, 204 ; s. c. L. R. 1 C. C. 161, 165 ; Regina v. Keyn, 13 Cox C. C. 403, 486, 525 ; s.^c. 2 Ex. Div. 63, 161, 213. As the owner has voluntarily taken his vessel for his own private purposes to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes that government such alle- giance for the time being as is due for the protection to which he becomes entitled. From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regu- lation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local gov- ernment to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its com- merce should require. But if crimes are committed on board of a char- acter to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority. Such being the general public law on this subject, treaties and con- ventions have been entered into by nations having commercial inter- course, the purpose of which was to settle and define the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions. [The learned Chief Justice here stated the terms of successive con- ventions entered into between the United States and foreign nations, and proceeded : — ] It thus appears that at first provision was made only for giving con- suls police authority over the interior of the ship and jurisdiction in civil matters arising out of disputes or differences on board, that is to SECT. L] WILDENHUS'S CASE. 27 say, between those belonging to the vessel. Under this police author- ity the duties of the consuls were evidently confined to the mainte- nance of order and discipline on board. This gave them DO power to punish for crimes against the peace of the country. In fact, they were expressly prohibited from interfering with the local police in matters of that kind. The cases of " The Sally" and "The Newton" (Wheat Internat. Law, 3d ed., 153). are illustrative of this position. That of " The Sally" related to the discipline of the ship, and that of ''The Newton" to the maintenance of order on board. In neither ease was the disturbance of a character to affect the peace or the dignity of the country. In the next conventions consuls were simply made judges and arbi- trators to settle and adjust differences between those on board. This clearly related to such differences between those belonging to the vessel as are capable of adjustment and settlement by judicial decision or by- arbitration, for it simply made the consuls judges or arbitrators in such matters. That would of itself exclude all idea of punishment for crimes against the State which affected the peace and tranquillity of the port; but, to prevent all doubt on this subject, it was expressly provided that it should not apply to differences of that character. ]S T ext came a form of convention which in terms gave the consuls authority to cause proper order to be maintained on board and to decide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were ol such a nature as to disturb the public tranquillity, and that is substan- tially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the conduct of the United States and Belgium towards each other in this particular. Each nation has granted to the other such local jurisdiction within its own dominion as may be necessary to maintain order on board a mer- chant vessel, but has reserved to itself the right to interfere if the dis- order on board is of a nature to disturb the public tranquillity. The treaty is part of the supreme law of the United Slates, and lias the same force and effect in New Jersey that it is entitled to elsewhere. If it o-ives the consul of Belgium exclusive jurisdiction over the oil. nee which it is alleged has been committed within the territory of New Jersey, we see no reason why he may not enforce his rights under the treatv by writ of habeas corpus in any proper court of the United States. This being the case, the only important question left for our determina- tion is whether the thing which has been done- the disorder that has u ri sen _ on board this vessel is of a nature to disturb the public peace, or, as some writers term it. the " public repose" of the people who look to the state of New .Jersey for their protection. If the thing done '* the disorder," as it is called in the treaty- is of a character to affeel those on shore or in the port when it becomes known, the fad that only those on the ship Baw it when it was done is a matter of no moment. Those who are not on the vessel pay uo special attention to the mei 28 WILDENHUS'S CASE. [CHAP. I. disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they as a rule care for anything done ou board which relates only to the discipline of the ship, or to the pre- servation of order and authority. Not so, however, with crimes which from their gravity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation considers itself bound to provide a severe punishment for when com- mitted within its own jurisdiction. In such cases inquiry is certain to be instituted at once to ascertain how or why the thing was done, and the popular excitement rises or falls as the news spreads and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature of the crime, but the act itself. If that is of a character to awaken public interest when it becomes known, it is a " disorder " the nature of which is to affect the community at large, and consequentby to invoke the power of the local government whose people have been disturbed by what was done. The very nature of such an act is to disturb the quiet of a peaceful community, and to create, in the language of the treaty, a "-disorder" which will " disturb tranquillity and public order on shore or in the port." The principle which governs the whole matter is this : Dis- orders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It ma}^ not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will un doubted!}' depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way, the consul has no right to interfere to prevent it. That, according to the petition for the habeas corpus, is this case. This is fully in accord with the practice in France, where the govern- ment has been quite as liberal towards foreign nations in this particular as any other, and where, as we have seen in the cases of l ' The Sally " and " The Newton," by a decree of the Council of State, representing the political department of the government, the French courts were pre- vented from exercising jurisdiction. But afterwards, in 1859, in the case of Jally, the mate of an American merchantman, who had killed one of the crew and severely wounded another on board the ship in the port of Havre, the Court of Cassation, the highest judicial tribunal of France, upon full consideration held, while the Convention of 1853 was in force, that the French courts had rightful jurisdiction, for reasons which sufficiently appear tn the following extract from its judgment : " Considering that it is a principle of the law of nations that every state has sovereign jurisdiction throughout its territory ; " Considering that by the terms of Article 3 of the Code Napoleon the laws of police and safety bind all those who inhabit French territory, SECT I.] COMMONWEALTH V. MANCHESTER. 29 and that consequently foreigners, even transeuntes, find themselves subject to those laws ; " Considering that merchant vessels entering the port of a nation other than that to which they belong cannot be withdrawn from the territorial jurisdiction, in any case in which the interest of the state of which that port forms part finds itself concerned, without danger to good order and to the dignity of the government ; " Considering that every state is interested in the repression of crimes and offences that may be committed in the ports of its territory, not only by the men of the ship's company of a foreign merchant vessel towards men not forming part of that company, but even by men of the ship's company among themselves, whenever the act is of a nature to compromise the tranquillity of the port, or the intervention of the local authority is invoked, or the act constitutes a crime by common law " (droit commun, the law common to all civilized nations), " the gravity of which does not permit any nation to leave it unpunished, without impugning its rights of jurisdictional and territorial sovereignty, because that crime is in itself the most manifest as well as the most flagrant violation of the laws which it is the duty of every nation to cause to be respected in all parts of its territory." 1 Ortolan Diplo- matic de la Mer (4th ed.), pp. 455, 456 : Si rev (K S.), 1859, p. 189. The judgment of the Circuit Court is affirmed. 1 COMMONWEALTH v. MANCHESTER. Supreme Judicial Court of Massachusetts. 1890. [Reported 152 Mass. 230.] Complaint on the St. of 1886, c. 192, § 1, charging that the defendant, while commorant of Falmouth, in the county of Barnstable, at Falmouth, on July 19, 1889, " did then and there draw, set. stretch, and use a purse seine for the taking of fish in the waters of Buzzard's Bay, within the jurisdiction of this Commonwealth." Trial in the Superior Court, before Sherman, .1., who, after a verdict of guilty, reported t lie case for the determination of this court, in substance as follows. The evidence introduced by the government tended to bIiow that the defendant and others, who were citizens of Rhode Island, and w< re officers and crew of the fishing steamer " A. T. Serrell," on the day alleged, were engaged in drawing, setting, stretching, and using a purse 1 For cases illustrating the peculiar questions of jurisdiction arising between the state and the United States courts, see Tennessee v. Davis, 100 TJ. S 257; Inn < 127 U.S. :.:i ■ In re Neagle, 135 U.S. 1; Manchester v Massachusetts, 189 i.s 30 COMMONWEALTH V. MANCHESTER. [CHAP. L seine for the taking of fish in the waters of Buzzard's Bay; that the place where the defendant and the others were so engaged was about, and not exceeding, one mile and a quarter from a point on the shore midway from the north line of the town of Falmouth to the south line thereof; that the point where they were so using said seine was within that part of Buzzard's Bay which the Harbor and Land Commissioners, acting under the provisions of section 2 of chapter 196 of the Acts of the year 1881, had, so far as they were capable of doing so, assigned to and made a part of the town of Falmouth ; that the defendant and his associates, on that day and at that place, caught with a seine a large quantity of the fish called menhaden ; that in so doing no fixed apparatus was used, and the bottom of the sea was not encroached upon or disturbed ; that the distance between the headlands at the mouth of Buzzard's Bay, viz. at Westport in the county of Bristol on the one side, and the island of Cuttyhunk, the most southerly of the chain of islands lying to the eastward of Buzzard's Bay, and known as the Elizabeth Islands, in the county of Dukes County, on the other side, was more than one and less than two marine leagues ; and that the distance across said bay at the point where the acts of the defendant were done is more than two marine leagues, and the opposite points are in different counties. The defendant did not dispute any of the evidence offered by the government, but introduced evidence tending to show that it was impossible to discern objects across from one headland to the other at the mouth of Buzzard's Bay ; that the steamer was of Newport, Rhode Island, duly enrolled and licensed at that port under the laws of the United States for carrying on the menhaden fishery ; that he was in the employ of a firm engaged in the State of Rhode Island in the busi- ness of seining menhaden to be sold for bait, and to be manufactured into fish oil and fertilizer ; that he was engaged in fishing for menhaden only, and caught no other fish ; that menhaden is not a food fish, and is only valuable for the purpose of bait and the manufacture of fish oil and fertilizer ; and that the taking of menhaden by seining does not tend in any way to decrease the quantity and variety of food fishes. It was conceded by the government that the defendant was em- ployed upon the vessel described by the enrolment and license, and at the time of the commission of the acts complained of he and his asso- ciates were so in the employ of the vessel described in the license ; and that the defendant could not be convicted if the St. of 1865, c. 212, was not repealed by the St. of 1886, c. 192. The defendant asked the judge to rule, that, notwithstanding the St. of 1886, c. 192, he was authorized to take menhaden bj' the use of the purse seine in the waters of Buzzard's Bay in the place where this act was committed ; that that statute did not repeal the St. of 1865, c. 212 ; that the defendant might lawfully take menhaden by the use of the purse seine in Buzzard's Ba\ r , in the place where the acts complained of were done ; that the act complained of was on the high seas and SECT. I.] COMMONWEALTH V. MAXCHF.S TEE. 31 without the jurisdiction of Massachusetts, and having been done under a United States license for carrying on this fishery, the defendant could not be held as a criminal for violating a statute of this Commonwealth ; that the defendant could not be held unless the act complained of was done and committed within the body of a county as understood at common law; that the statute of this Commonwealth prohibiting under a penalty the use of nets and seines, and the taking of fish within three miles of the shore, was invalid, especially as against a license to fish granted under the laws of the United States; and that on all the evidence the defendant could not be convicted. The judge declined so to rule, and instructed the jury that the St. of 1865, c. 212, was repealed by the St. of 1886, c. 192; that if they found that the defendant was engaged in using a purse seine for the taking of fish of any kind in that part of Buzzard's Bay which was within the jurisdiction of the Commonwealth of Massachusetts, they would be authorized to convict the defendant ; and that the place where the acts of the defendant were committed, being within a marine league from the shore at low-water mark, was within the jurisdiction of the Commonwealth. G. A. King & J. F. Jackson, for the defendant. H. C. Bliss, First Assistant Attorney- General, for the Common- wealth. Field, C. J. The defendant was complained of for taking fish by the use of a purse seine in the waters of Buzzard's Bay, within the jurisdiction of this Commonwealth. It appears by the report, that the point in Buzzard's Bay where the seine was used "'was within that part of Buzzard's Bay which the Harbor and Land Commissioners, acting under the provisions of section 2 of chapter IDG of the Acts of the vear 1881, had, so far as they were capable of doing so, assigned to and made a part of the town of Falmouth" ; that the distance between the headlands at the mouth of Buzzard's Bay is " more than one and less than two marine leagues ; " and that " the distance across said bay at the point where the acts of the defendant were done is more than two marine leagues, and the opposite points are in different counties." The place "was about, and not exceeding, one mile and a quarter from a point on the shore midway from the north line of the town of Falmouth to the south line" of said town. Buzzard's Bay lies wholly within the territory of Massachusetts, having Barnstable County on the one side, and the counties of Bristol and Plymouth on the other. The defendant offered evidence that he was fishing for menhaden onlj', with a purse; seine, and that, the bottom of the sea " was not encroached upon or disturbed," and thai " it was impossible to discern objects across from one headland to the other at the mouth of Buzzard's Bay ; " that he was a citizen of the State of Rhode rsland, and that the vessel upon which be was employe. 1. and in eonneclion with which he was usim; the seme, belonged to Newport, in thai State, and had been "duly enrolled and licensed at that pot! under the laws of the United States for carrying on the menhaden fishery." 32 COMMON WEALTH V. MANCHESTER. [CHAP. I. It was contended at the trial, among other things, that the St. of 1886, c. 192, under which the complaint was made, had not repealed the St. of 1865, c. 212 ; but this has not been argued in this court. It is plain that the St. of 1886, c. 192, was intended to regulate the whole subject of using nets or seines for taking fish in the waters of Buzzard's Bay, and that b}' implication it repealed the St. of 1865, c. 212, so far as that statute related to the taking of menhaden by the use of a purse seine in the waters of that ba}-. The principal question argued here is, whether the place where the acts of the defendant were done was within the jurisdiction of the Commonwealth of Massa- chusetts. The Pub. Sts. c. 1, §§ 1, 2, are as follows: "Section 1. The terri- torial limits of this Commonwealth extend one marine league from its sea-shore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width between its headlands, a straight line from one headland to the other is equivalent to the shore line. Section 2. The sovereignty and jurisdiction of the Common- wealth extend to all places within the boundaries thereof; subject to the rights of concurrent jurisdiction granted over places ceded to the United States." The Pub. Sts. c. 22, § 1, contain the following pro- vision : ''The boundaries of counties bordering on the sea shall extend to the line of the Commonwealth, as defined in section one of chapter one." Section 11 of the same chapter is as follows : "The jurisdiction of counties separated hy waters within the jurisdiction of the Common- wealth shall be concurrent upon and over such waters." The St. of 1881, c. 196, which has been referred to, is as follows: "Section 1. The boundaries of cities and towns bordering upon the sea shall extend to the line of the Commonwealth, as the same is defined in section one of chapter one of the General Statutes. Section 2. The Harbor and Land Commissioners shall locate and define the courses of the boundary lines between adjacent cities and towns bordering upon the sea, and upon arms of the sea, from high-water mark outward to the line of the Commonwealth, as defined in said section one, so that the same shall conform as nearly as may be to the course of the boundary lines between said adjacent cities and towns on the land ; and they shall file a report of their doings, with suitable plans and exhibits, showing the boundary lines of any town by them located and defined, in the registry of deeds in which deeds of real estate situated in such town are required to be recorded, and also in the office of the Secretary of the Common- wealth." Sections 1 and 2 of chapter 1 of the General Statutes contain the provisions which have been before recited, as now contained in the Pub. Sts. c. 1, §§ 1, 2, and c. 22, §§1,11. These provisions were first enacted by the St. of 1859, c. 289. Section 1 of the Rev. Sts. c. 1, was as follows : " The sovereignty and jurisdiction of the Commonwealth extend to all places within the boundaries thereof; subject only to such rights of concurrent jurisdiction as have been or may be granted over any places ceded by the Commonwealth to the United States." The SECT. I.J COMMONWEALTH V MANCHESTER. 33 boundaries of the Commonwealth on the sea were first exactly defined by the St. of 1859, c. 289. The boundaries of the territory granted by the charter of the Colony of New Plymouth, or of the territory included in the Province Charter, need not be particularly set forth. Buzzard's Bay was undoubtedly within the territory described in those charters. By the definitive treaty of peace between the United States of America and Great Britain. " His Britannic Majesty acknowledges the said United States, viz. New Hampshire. Massachusetts Bay, ... to be free, sovereign, and independent States ; that he treats with them as such ; and for himself, his heirs and successors, relinquishes all claims to the government, propriety, and territorial rights of the same, and every part thereof." 8 U. S. Sts. at Large, 81. If Massachusetts had become an independent nation, there can be no doubt, we think, that her boundaries on the sea, as she has defined them by the statutes, would be acknowledged b} - all foreign nations, and that her right to control the fisheries within these boundaries would be conceded. It has often been a matter of controversy how far a nation has a right to control the fisheries on its sea-coast, and in the bays and arms of the sea within its territory ; but the limits of this right have never been placed at less than a marine league from the coast on the open sea ; «ind bays wholly within the territory of a nation, the headlands of which are not more than six geographical miles apart, have always been regarded as a part of the territory of the nation in which they lie. More extensive rights in these respects have been and are now claimed by some nations ; but, so far as we are aware, all nations concede to each other the right to control the fisheries within a marine league of the coast, and in bays within the territory the headlands of which are not more than two marine leagues apart. In the proceedings of the Halifax Commission, under the Treat}' of Washington of May 8, 1871, where it was for the interests of the United States to claim against Great Britain, independently of treaties, as extensive rights of fishing as could be maintained, the claim was stated, in the answer on behalf of the United States, as follows: "It becomes necessary at the outset to inquire what rights American fish- ermen, and those of other nations, possess, independently of treaty, upon the ground that the sea is the common property of all mankind. For the purposes of fishing, the territorial waters of every country along the sea-coast extend three miles from low-water mark ; and beyond is the open ocean, free to all. In the case of bays and gulfs, such only are territorial waters a-- do not exceed six miles in width at the mouth upon a straight line measured from headland to head land. All larger bodies of water connected with the open sea form a part of it. And whenever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the oharacter of territorial or inland waters, the jurisdictional or proprietary line for the purpose of excluding foreigners from fishing is measured along the shore of the bay according to its sinuosities, and the limit of exclusion 34 COMMONWEALTH V. MANCHESTER. [CHAP. I is three miles from low-water mark." Documents and Proceedings of the Halifax Commission (Washington, 1878), Vol. I. p. 120 (45th Cong. 2d Sess., H. R. Ex. Doc, No. 89). The government of Canada had been instructed by the government of Great Britain, on April 12, 1866, "that American fishermen should not be interfered with, either by notice or otherwise, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839 ; " but afterwards the British government issued instructions " that the United States fish- ermen will not be for the present prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth." Vol. I. pp. 120, 121. It is true that Mr. Dana, of counsel for the United States, contended, in argument with reference to the right to fish in the open sea, "that the deep-sea fisherman, pursuing the free-swimming fish of the ocean with his net or his leaded line, not touching shores or troubling the bottom of the sea, is no trespasser, though he approach within three miles of a coast, by an}- established recognized law of all nations." Vol. II. p. 1654. This contention, however, did not touch the right to fish in bays or arms of the sea, and it was not the claim actually made by the United States before the* Commission. This is stated in the answer and in the brief of the United States. The answer does not allude to an}* such position as that taken by Mr. Dana in his closing argument, but in the brief it is said : " Many authorities maintain that whenever, under the law of nations, any part of the sea is free for navigation, it is likewise free for fishing by those who sail over its surface. But, without insisting upon this position, the inevitable conclusion is, that prior to the Treaty of Washington the fishermen of the United States, as well as those of all other nations, could rightfully fish in the open sea more than three miles from the coast, and could also fish at the same distance from the shore in all bays more than six miles in width, measured in a straight line from headland to headland." Vol. I. p. 166. The counsel for the defendant in the case at bar place much reliance upon the decision in The Queen v. Keyn, 2 Ex. D. 63. In that case, the defendant was the officer in command of the " Franconia," a Ger- man steamer, which, at a point " one mile and nine tenths of a mile S. S. E. from Dover pier-head, and within two and a half miles from Dover beach," in the English Channel, ran down and sank the British steamer " Strathclyde," and one of the " Strathclyde's " passengers was drowned. The defendant was indicted in the Central Criminal Court for manslaughter. The question was whether the offence was committed within the jurisdiction of the admiralty, the Central Criminal Court having jurisdiction to hear and determine any offence alleged "to have been committed on the high seas or other places within the jurisdiction of the Admiralty of England " (p. 100). A majority of the court held that the offence was committed on the German steamer, SECT. I.] COMMONWEALTH V. MANCHESTER. and not on the British steamer ; and that, under the laws then exist- ing, there was no admiralty jurisdiction over an offence committed by a foreigner on a foreign ship on the open sea, whether within or without a marine league from the shore of England. In consequence of this decision, Parliament passed the St. of 11 and 12 Vict. c. 73. By that Act it was declared that, " for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral any part of the open sea within one marine league of the coast, measured from low-water mark, shall be deemed to be open sea within the terri- torial waters of Her Majesty's dominions." It is obvious that by this decision the court did not attempt to define the extent of the dominion of Great Britain over the open sea adjacent to the coast, but only the extent of the existing admiralty jurisdiction over offences committed on the open sea. The courts of England would undoubtedly enforce any Act of Parliament conferring upon them jurisdiction over offences committed anywhere. It is equally obvious that the decision has nothing to do with the right of control over fisheries in the open sea, or in bays or arms of the sea. The case contains a great deal of learning upon the respective limits of the common-law jurisdiction and of the admiralty jurisdiction in England over crimes, and upon the boundaries of counties in England under the laws then existing. These distinctions are immaterial in the case at bar, except with reference to the contention that the place where the acts complained of were done was within the admiralty jurisdiction of the courts of the United States. The boundaries of counties in Massachusetts may be defined by statute, and they may be made to extend over all the territory of Massachusetts, whether it be sea or land ; and, if Massachusetts has a right to control the fisheries in Buzzard's Bay, offences in violation of the regulations which the State may establish can be tried in any of its courts upon which it may confer jurisdiction. It is to be noticed, however, that in all the cita- tions contained in the different opinions given in The Queen v. Keyn, wherever the question of the right of fishery is referred to, it is con- ceded that the control to the extent at least of a marine league belongs to the nation on whose coast the fisheries are. The argument of Mr. Benjamin, of counsel for the defendant, is not contained in the report of the case ; but from the statement of Mr. Justice Lindley, found on page 90 of the report, it seems that he admitted that the dominion of a State over the seas adjoining its shore existed for the purpose <>f protecting "its coasts from the effects of hostilities between other nations which may be at war, the protection of its revenue and of its fisheries, and the preservation of order by its police." in Direct United Stales Cable Co. v. Anglo-American Telegraph Co. 2 App. Cas. 394, it became necessary for the Privy Council t<> deter- mine whether a point, in Conception Hay, Newfoundland, more than three miles from the shore, was a pari of the territory of Newfound- land, and within the jurisdiction of its legislature. It appeared thai 36 COMMONWEALTH V. MANCHESTER. [CHAP. I. the average width of the bay " is about fifteen miles," and the distance between the headlands is " rather more than twenty miles." Lord Blackburn, in delivering the opinion, says, at page 416 : " The question raised in this case, and to which their Lordships confine their judg- ment, is as to the territorial dominion over a bay of configuration and dimensions such as those of Conception Bay above described. The few English common-law authorities on this point relate to the question as to where the boundary of counties ends, and the exclusive jurisdic- tion at common law of the Court of Admiralty begins, which is not precisely the same question as that under consideration ; but this much is obvious, that when it is decided that any bay or estuary of any particular dimensions is or may be a part of an English county, and so completely within the realm of England, it is decided that a similar ba}' or estuary is or may be part of the territorial dominions of the country possessing the adjacent shore." He quotes, at page 417, the well-known language of Lord Hale : " That arm or branch of the sea which lies within the fauces terrm % where a man may reasonably discerne between shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner," and comments upon its indefiniteness ; and then cites the case of Regina v. Cunningham, Bell, C. C. 72, 86, and sa} - s, at page 419, that in this case, " this much was determined, that a place in the sea, out of any river, and where the sea was more than ten miles wide, was within the county of Glamorgan, and consequently, in every sense of the words, within the territory of Great Britain." Apparently he was of opinion that, by most of the text-writers on international law, Con- ception Ba}' would be excluded from the territory of Newfoundland, and the part of the Bristol Channel which in Regina v. Cunningham was decided to be in the county of Glamorgan would be excluded from the territory of Great Britain ; but he decides that Conception Bay is a part of the territory of Newfoundland, because the British govern- ment has exercised exclusive dominion over it, with the acquiescence of other nations, and it has been declared by Act of Parliament " to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland." We regard it as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide waters is a marine league from its coast, and that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit, and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free- moving fish like lobsters, or fish attached to or imbedded in the soil. The open sea within this limit is of course subject to the common right of navigation ; and all governments, for the purpose of self-protection in time of war, or for the prevention of frauds on the revenue, exercise an authority beyond this limit. We have no doubt that the British Crown will claim the ownership of the soil in the bays SECT. I.] DIRECT U. S. CABLE CO. V. ANGLO-AMERICAN TELEG. CO. 37 and in the open sea adjacent to the coast of Great Britain, to at least this extent, whenever there is any occasion to determine the ownership. The authorities are collected in Gould on Waters, Part 1. ec. 1, 2, and notes. See also Neill v. Duke of Devonshire, 8 App. Cas. 135 ; Gam- med v. Commissioners of Woods and Forests, 3 Macq. U9 ; Mowat v. McFee, 5 Sup. Ct. of Canada. 66 ; The Queen v. Cubitt, 22 Q. B. D. 622; St. 46 & 47 Vict. c. 22. 1 DIRECT UNITED STATES CABLE CO. v. ANGLO- AMERICAN TELEGRAPH CO. Judicial Committee of the Privy Council. 1877. [Reported 2 Appeal Cases, 39-1.] Lord Blackburn. 2 . . . Conception Bay lies on the eastern side of Newfoundland, between two promontories, the southern ending at Cape St. Francis, and the northern promontory at Split Point. No evidence haB been given, nor was any required, as to the configuration and di- mensions of the bay. as that was a matter of which the court could take judicial notice. On inspection of the Admiralty chart, the following statement, though not precisely accurate, seems to their Lordships sufficiently so to enable them to decide the question : — The bay is a well-marked bay, the distance from the head of the bay to Cape St. Francis being about forty miles, and the distance from the head of the bay to Split Point being about fifty miles. The average width of the bay is about fifteen miles, but the distance from Cape St. Francis to Split Point is rather more than twenty miles. The appellants have brought and laid a telegraph cable to a buoy more than thirty miles within this bay. The buoy is more than three miles from the shore of the bay, and in laying the cable, care has been taken not at any point to come within three miles of the shore, so as to avoid raising any question as to the territorial dominion over the ocean within three miles of the shore. Their Lordships therefore are not called upon to express any opinion on the questions which were re- cently so much discussed in the case of Reg. v. Keyn (the li Franconia" ease). The question raised in this case, and to which their Lordships ••on- line their judgment, is as to the territorial dominion over .-i bay ol configuration and dimensions such as those of Conception Bay above described. i The remainder of the opinion di ' righl of jurisdiction as between the State and the United States. Affirmed, Manchester v. Ma ichusetts, L89 U. 8 210. — Ed. 2 Only so much of Lord Blackburn's opinion i i given as deals with the jurisdiction over Conception Bay. — Ed. 38 DIRECT U. S. CABLE CO. V. ANGLO-AMERICAN TELEG. CO. [CHAP. I. The few English common-law authorities on this point relate to the question as to where the boundary of counties ends, and the exclusive jurisdiction at common law of the Court of Admiralty begins, which is not precisely the same question as that under consideration ; but this much is obvious, that when it is decided that any bay or estuary of any particular dimensions is or may be a part of an English county, and so completely within the realm of England, it is decided that a similar bay or estuary is or may be part of the territorial dominions of the country possessing the adjacent shore. The earliest authority on the subject is to be found in the grand abridgment of Fitzherbert " Corone," 399, whence it appears that in the 8 Edw. II. , in a case in Chancery (the nature and subject-matter of which does not appear), Staunton, J., expressed an opinion on the subject. There are one or two words in the common printed edition of Fitzherbert which it is not easy to decipher or translate, but subject to that remark this is a translation of the passage : " Nota per Staunton, J., that that is not [sance which Lord Coke translates l part'] of the sea where a man can see what is done from one part of the water and the other, so as to see from one land to the other ; that the coroner shall come in such case and perform his office, as well as coming and going in an arm of the sea, there where a man can see from one part to the other of the [a word not deciphered], that in such a place the country can have conusance, etc." That is by no means definite, but it is clear Staunton thought some portions of the sea might be in a county, and within the jurisdiction of the jury of that county, and at that early time, before cannon were in use, he can have had in his mind no reference to cannon shot. Lord Coke recognizes this authority, 4th Institute, 1-iO, and so does Lord Hale. The latter, in his treatise, De Jui-e Maris, p. 1, c. 4, uses this lano-uasre : "That arm or branch of the sea which lies within the fauces terrce, where a man may reasonabby discerne between shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner. Edward II., Corone, 399." Neither of these great authorities had occasion to apply this doctrine to any particular place, nor to define what was meant by seeing or dis- cerning. If it means to see what men are doing, so, for instance, that ' eye-witnesses on shore could say who was to blame in a fray on the waters resulting in death, the distance would be very limited ; if to discern what great ships were about, so as to be able to see their manoeuvres, it would be very much more extensive ; in either sense it is indefinite. But in Reg. v. Cunningham, Bell's Cr. C. 86, it did become necessary to determine whether a particular spot in the Bristol Channel, on which three foreigners on board a foreign ship had com- mitted a crime, was within the countv of Glamorgan, the indictment having, whether necessarily or not, charged the offence as having been committed in that county. The Bristol Channel, it is to be remembered, is an arm of the sea SECT. I.J DIRECT U. S. CABLE CO. V. ANGLO-AMEEICAN TELEG. CO. 39 dividing England from Wales. Into the upper end of this arm of the sea the River Severn flows. Then the arm of the sea lies betwei n Somersetshire and Glamorganshire, and afterwards between Devon- shire and the counties of Glamorgan, Carmarthen, and Pembroke, It widens as it descends, and between Port Eynon Head, the lowest point of Glamorganshire, and the opposite shore of Devon it is wider than Conception Hay; between Hartland Point, in Devonshire, and Pembrokeshire it is much wider. The case reserved was carefully pie- pared. It describes the spot where the crime was committed as being in the Bristol Channel, between the Glamorganshire and Somersetshire coasts, and about ten miles or more from that of Somerset. It nega- tived the spot being in the River Severn, the mouth of which, it is stated, was proved to be at King's Road, higher up the Channel, and was to be taken as the finding of the jury. It also showed that the spot in question was outside Penartb Head, and could not therefore be treated as within the smaller bay formed by Penartb Head and Laver- nock Point. And it set out what evidence was given to prove that, the spot had been treated as part of the county of Glamorgan, and the question was stated to lie whether the prisoners were properly con- victed of an offence within the county of Glamorgan. The case was much considered, being twice argued, and Chief Justice Cockburn delivered judgment, saying: "The only question with which it he- comes necessary tor us to deal is whether the part of the sea on which the vessel was at the time when the offence was committed, forms part of the body of the county of Glamorgan, and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on the one side, and the county of Glamorgan on the other. We are of opinion that looking at the local situa- tion of this sea it must be taken to belong to the counties respec- tively by the shores of which it is bounded; and the fact of the Holms between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff, and as part of the count}' of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea between the counties of Somerset and Glamor- gan, is to be considered as within the counties by the shores of which its several parts are respectively bounded. We are therefore of opinion that the place in question is within the body of the county of Glamor- gan." The case reserved in Cunningham's Case, incidentally stales that it was about ninety miles from I'enarth Roads (where the crime was committed) to the mouth of the Channel, which points to the head- lands in Pembroke and Hartland Point in Devonshire, as being the fauces of that arm of the sea. Tt. was not, however, necessary for the decision of Cunningham's Case to determine what was the entrance of the Bristol Channel, further than that it was below the place where the crime was commit ted ; and though the language used in the judgment 40 DIKECT U. S. CABLE CO. V. ANGLO-AMERICAN TEL EG. CO. [CHAP. 1 is such as to show that the impression of the court was that at least the whole of that part of the Channel between the counties of Somerset and Glamorgan was within those counties, perhaps that was not deter- mined. But this much was determined, that a place in the sea, out of any river, and where the sea was more than ten miles wide, was within the county of Glamorgan, and consequently, in every sense of the words within the territory of Great Britain. It also shows that usage and the manner in which that portion of the sea had been treated as being part of the county was material, and this was clearly Lord Hale's opinion, as he says not that a bay is part of the count}', but only that it may be. Passing from the Common Law of England to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbors, estuaries, and bays landlocked belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to deter- mine what is " bay " for this purpose. It seems generally agreed that where the configuration and dimen- sions of the ba}' are such as to show that the nation occupying the ad- joining coasts also occupies the bay, it is part of the territory ; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation ; some suggesting therefore a width of one cannon shot from shore to shore, or three miles ; some a cannon shot from each shore, or six miles ; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham, Bell's Cr. C. 72, was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdic- tion over much more extensive bays, and Chancellor Kent, in his Com- mentaries, though b} T no means giving the weight of his authority to this claim, gives some reasons for not considering it altogether unrea- sonable. It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts ; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to la}* down a rule the difficulty of the task would not deter their Lord- ships from attempting to fulfil it. But in their opinion it is not neces- sary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country SECT. I.] FORBES V. COCHRANE. 41 would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has bv Acts of Parliament de- clared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland. SEAGROVE v. PARKS. High Court of Justice, Queen's Bench Division. 1891. [Reported [1S91] I Q B. 551.] Appeal from a refusal of Denman, J., at chambers, to give leave to serve a writ out of the jurisdiction. It appeared from the affidavit used in support of the application that the defendant was a naval officer on hoard II. M.S. *' Cockatrice," appointed to the Mediterranean station, and that at the time of the applica- tion the ship was on the high seas. There were certain coaling ports at which the ship would touch, and in due course she would put into Malta, the chief port on the station. It was stated that leave had been granted by Vaughan Williams and Lawrance, JJ., respectively at chambers, in similar applications by the plaintiffs in actions against other officers on board ships on the Mediterranean station, the orders o-ivinCT leave to serve the writ " at Malta or elsewhere in the Med iter- ranean." The application in the present case was refused by Denman, J., upon the ground that, as the defendant was on the high seas at the time of the application, the affidavit did not sufficiently show, nor could it be shown, -'in what place or country such defendant is or probably may be found," as required by Order xi., r. 4. The plaintiffs appealed. Montague Lush, for the plaintiffs. Per Curiam (Cave and Charles, JJ.). The decision must be affirmed. As long as the defendant is on board his ship, he is within the jurisdiction, and Order xi. is unnecessary and inapplicable. If it is sought to serve him out of the jurisdiction, upon his quitting his ship, the affidavit does not comply with the requirements of Order xi., r. 4. Appeal di^uiissed. FORBES v. COCHRANE. Kind's Bench. 1824. [Reported '2 Barnwall .\- Cresswell, 448.] The declaration stated thai ili<' plaintiff was lawfully possessed <>( a certain cotton plantation, situate in parts beyond tin' seas, t<> wit. in Hast Florida, of large value, and on which plantation lie employed 42 FORBES V. COCHRANE. [CHAP. L divers persons, his slaves or servants. The first count charged the defendants with enticing the slaves awa}\ The second count stated, that the slaves or servants having wrongfully and against the plaintiffs will, quitted and left the plantation and the plaintiff's service, and gone into the power, care, and keeping of the defendants ; the}', know- ing them to be the slaves or servants of the plaintiff, wrongfully received the slaves into their custody, and harbored, detained, and kept them from the plaintiffs service. The last count was for wrong- fully harboring, detaining, and keeping the slaves or servants of the plaintiff after notice given to the defendants that the slaves were the plaintiff's property, and request made to the defendants by the plain- tiff to deliver them up to him : plea, not guilty. . At the trial before Abbott, C. J., at the London sittings after Trinity term, 1822, a ver- dict was found for the plaintiff, damages £3800, subject to the opinion of the court on the following case. The plaintiff was a British merchant in the Spanish provinces of East and West Florida, where he had carried on trade for a great many years, and was principally resident at Pensacola in West Florida. Eaist and West Florida were part of the dominions of the king of Spain, and Spain was in amity with Great Britain. The plaintiff, before and at the time of the alleged grievances, was the proprietor and in the possession of a cotton plantation, called San Pablo, lying contiguous to the river St. John's, in the province of East Florida, and of about one hundred negro slaves whom he had purchased, and who were employed by him upon his plantation. The river St. John's is about thirty or forty miles from the confines of Georgia, one of the United States of America, which is separated from East Florida by the river St. Mary, and Cumberland Island is at the mouth of the river St. Mary on the side next Georgia, and forms part of that State. During the late war be- tween Great Britain and America, in the month of February, 1815, the defendant, Vice- Admiral Sir Alexander Inglis Cochrane, was command- er-in-chief of His Majesty's ships and vessels on the North American station. The other defendant, Rear-Admiral Sir George Cockburn, was the second in command upon the said station, and his flag-ship was the " Albion." The British forces had taken possession of Cumber- land Island, and at that time occupied and garrisoned the same. The " Albion," " Terror Bomb," and others of His Majesty's ships of war, formed a squadron under Sir George Cockburn's immediate command off that island, where the headquarters of the expedition were. 1 In the night of the 23d February, 1815, a number of the plaintiff's slaves deserted from his said plantation, and on the following day thirty-eight of them were found on board the " Terror Bomb," part of the squadron at Cumberland Island, and entered on her muster-books as refugees from St. John's. On the 26th of the same month of February, Sir George Cockburn received from the plaintiff a memorial. The plaintiff prayed " that the defendant, Sir G. Cockburn, would ordei 1 The statement of facts is condensed by omitting unnecessary facts. — Ed. SECT. I.] FOl;l;i.s r. COCHRANE, -li- the said thirty-eight slaves to be forthwith delivered to him Their lawful proprietor." Sir G. Cockburn told him he might see his slaves, and use any arguments and persuasions he chose to induce them to return. The plaintiff accordingly endeavored to persuade them to go hack to his plantation, and no restraint was put 14)011 them, but they refused to go. The plaintiff then urged his claim very strongly to Sir G. Cockburn, and said he must get redress if he did not succeed in prevailing upon Sir G. Cockburn to order them back again, which Sir G. Cockburn said he could not do, because they were free agents and might do as they pleased, and that he could not force them back. Holrotd, J. 1 I am also of opinion, that the plaintiff is not en- titled to maintain the present action. The declaration alleges, that the plaintiff was the proprietor, and in the possession of a cotton plantation lying contiguous to the river St. John's, in East Florida, on which land he employed divers persons, his slaves or servants. The plaintiff, therefore, claims a general property in them as his slaves or servants, and he claims this property, as founded, not upon any municipal law of the country where he resides, but upon a general right. This action is therefore founded upon an injury done to that general right. Now it appears, from the facts of the case, that the plaintiff had no right in these persons, except 111 their character of slaves, for they were not serving him under any contract ; and. according to the principles of the English law, such a right cannot be considered as warranted by the general law of nature. I do not mean to say that particular cir- cumstances may not introduce a legal relation to that extent; but assuming that there may be such a relation, it can only have a local existence, where it is tolerated by the particular law of the place, to which law all persons there resident are bound to submit. Now if the plaintiff cannot maintain this action under the general law of nature, independently of any positive institution, then his right of action can be founded only upon some right which he "lias acquired by the law of the country where he is domiciled. If he, being a British subject, could show that the defendant, also a British subject, had entered the country where he, the plaintiff, was domiciled, and had done any act' amounting to a violation of that right to the possessi if slaves which was allowed by the laW8 of thai country. I am by no means prepared to say that an action mighl not be maintained againsl him. The laws of England will protect the rights of British Bubjects, ami give a remedy for a grievance com mil led by one British subject upon another, 111 whatever country that may lie done. That, however, is a very different case from the present. Here, the plaintiff, a British Bubject, was resident in a Spanish colony, and perhaps it may lie inferred, from what is slated in the special case, that, by Hie law of that colony, slavery was tolerated. J am of opinion, that, according to the prin- ciples of the English law, the right lo slaves, even in a country where 1 The arguments of conn el, the opinion of Bayley, •! , and pari "I tin- opini / Bi r, 1., are omitted. — Ed. 44 FORBES V. COCHRANE. [ CHAP. I. such rights are recognized by law, must be considered as founded not upon the law of nature, but upon the particular law of that country. And, supposing that the law of England would give a remedy for the violation of such a right by one British subject to another (both being resident in and bound to obey the laws of that country) still the right to these slaves being founded upon the law of Spain, as applicable to the Floridas, must be co-extensive with the territories of that State. I do not mean to say, that if the plaintiff having the right to possess these persons as his slaves there, had taken them into another place, where, by law, slavery also prevailed, his right would not have continued in such a place, the laws of both countries allowing a property in slaves. The law of slavery is, however, a law in invitum ; and when a party gets out of the territory where it prevails, and out of the power of his master, and gets under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue, and there is no right of action against a part} 7 who merely receives the slave in that country, without doing any wrongful act. This has been decided to be the law with respect to a person who has been a slave in any of our West India colonies, and conies to this country. The moment he puts his foot on the.shores of this country, his slavery is at an end. Put the case of an uninhabited island discovered and colonized by the subjects of this country ; the inhabitants would be protected and governed by the laws of this country. In the case of a conquered country, indeed, the old laws would prevail, until altered by the King in council ; but in the case of the newly discovered country, freedom would be as much the inheritance of the inhabitants and their children, as if they were treading on the soil of England. Now, suppose a person who had been a slave in one of our own West India settlements, escaped to such a country, he would thereby become as much a freeman as if he had come into Eng land. He ceases to be a slave in England, only because there is no law which sanctions his detention in slavery ; for the same reason, he would cease to be a slave the moment he landed in the supposed newly discovered island. In this case, indeed, the fugitives did not escape to any island belonging to England, but they went on board an Eng- lish ship (which for this purpose may be considered a floating island), and in that ship they became subject to the English laws alone. They then stood in the same situation in this respect as if they had come to an island colonized by the English. It was not a wrongful act in the defendants to receive them, quite the contrary. The moment they got on board the English ship there was an end of any right which the plaintiff had by the Spanish laws acquired over them as slaves. They had got beyond the control of their master, and beyond the territory where the law recognizing them as slaves prevailed. They were under the protection of another power. The defendants were not subject to the Spanish law, for they had never entered the Spanish territories, SECT. I.J FORBES V. COCHRANE. 45 either as friends or enemies. The plaintiff was permitted to see the men, and to endeavor to persuade them to return ; but in that he failed. He never applied to be permitted to use force; and it does not appeal that he had the means of doing so. I think that Sir G. Cockburn was not bound to do more than he did ; whether he was bound to do so much it is unnecessary for me to say. It was not a wrongful act in him, a British officer, to abstain from using force to compel the men to return to slavery. It does not appear that he prevented force being used. I do not say that he might not have refused, but in fact there was no refusal. I have given my opinion upon this question, suppos- ing that there would be a right of action against these defendants, if a wrong had actually been done by them, but I am by no means clear, that even under such circumstances, any action would have been main- tainable against them by reason of their particular situation as officers acting in discharge of a public duty, in a place flagrante hello. I doubt whether the application ought not to have been made in such a case to the governing powers of this country for redress. The cases from the Admiralty Courts are distinguishable from the present, upon the grounds already stated by my Brother Bavi.ky. In Madrazo v. Willes, 3 B. & Aid. 353, the plaintiff was a Spanish subject, and by the law of Spain slavery and the trade in slaves being tolerated, he had a right, by the laws of his own countrv, to exercise that trade. The taking awav the slaves was an active wrong done in aggression upon rights given by the Spanish law. That is very different from requiring, as in this ca.'ie, an act to be done against the slaves, who had voluntarily left tl eir master. When they got out of the territory where they became shares to the plaintiff and out of his power and control, the}' were, by the general law of nature, made free, unless they were slaves by the \ ar- ticular law of the place where the defendant received them. They were not slaves b}' the law which prevailed on board the British ship of war. I am, therefore, of opinion, that the defendants are entitled to 'ihe judgment of the court. Best J. The question is, were these persons slaves at the tiiwe when Sir G. Cockburn refused to do the act which he was desired to do? I am decidedly of opinion that they were then no longer slaves. The moment they put their feet on board of a British man-of-war, not lying within the waters of Bast Florida (where, undoubtedly, the laws of that country would prevail), those persons who before had been slaves, were free. The defendants were not guilty of any act pre- judicial to the rights which the plaintiff alleges to have been infringed. Those rights were at an end before the defendants were called upon to act. Slaverv is a local law. and, therefore, if a man wishes to preserve his slaves, let him attach them to him by affection, or make fast the bars of their prison, or rivet well their chains, for the instant they get be}'ond the limits where slavery is recognized by the local law. they have broken their chains, they have escaped from their prison, anil are free. These men. when on board an English ship, had ail ih< 46 MCDONALD V. MALLORY. [CHAP. I. rights belonging to Englishmen, and were subject to all their liabilities. If the} - had committed any offence they must have been tried according to English laws. If any injury had been done to them they would have had a remedy Ivy applying to the laws of this country for redress. I think that Sir G. Cockburn did all that he lawfully could do to assist the plaintiff; he permitted him to endeavor to persuade the slaves to return ; but he refused to apply force. I think that he might have gone further, and have said that force should not be used by others ; for if any force had been used by the master or any person in his assistance, can it be doubted that the slaves might have brought an action of tres- pass against the persons using that force? Nay, if the slave, acting upon his newly recovered right of freedom, had determined to vindicate that right, originally the gift of nature, and had resisted the force, and his death had ensued in the course of such resistance, can there be any doubt that every one who had contributed to that death would, according to our laws, be guilty of murder? That is substantially decided by Sommersett's case, from which, it is clear, that such would have been the consequence had these slaves been in England ; and so far as this question is concerned, there is no difference between an English ship and the soil of England ; for are not those on board an English ship as much protected and governed b}' the English laws as if they stood upon English land? Judgment for the defendants. 1 Mcdonald v. mallory. Court of Appeals, New York. 1879. [Reported 77 N. Y. 546.] Rapallo, J. 2 For the purposes of this appeal the wrongful act or neglect causing the death of the plaintiff's intestate must be treated as having been committed upon the high seas. The complaint does not specifically allege that the disaster was caused by the unlawful or negligent lading of the petroleum on board of the vessel in the port of New York, and consequently the question whether that fact, if alleged, would establish that the wrong complained of was committed within the territorial bounds of this State, need not be considered. We shall therefore come directly to the principal point argued, which is, whether under the statute of this State, which gives a right of action for causing death by wrongful act or neglect, an action can be maintained for thus causing a death on the high seas, on board of a vessel hailing from and registered in a port within this State and owned by citizens thereof; the person whose death was so caused i See Madrazo v. Willes, 3 B. & Aid. 353. — Ed. 2 The opinion only is given ; it sufficiently states the case. — Ed. SECT. I.] McDOXALD V. MALLORY. 47 being also a citizen of this State, the vessel being at the time employed by the owners in their own business, and their negligence being alleged to have caused the death. It is settled by the adjudications of our own courts that the right of action for causing death by negligence exists only by virtue of the statute, and that where the wrong is committed within a foreign State or country, no action therefor can be maintained here, at least without proof of the existence of a similar statute m the place where the wrong was committed. (Whitford y. Panama R. R. Co., '2'.\ N. Y. 46o ; Crowley v. Panama R. R. Co., 30 Barb. 9'J ; Beach v. Bay State Steamboat Co., 30 id. 433 : Vandeventer v. N. Y. and New Haven R. R. Co., 27 id. 244.) These decisions rest upon the plain ground that our statute can have no operation within a foreign juris- diction, and that with respect to positive statute law it cannot be presumed that the laws of other States or countries are similar to our own. (Opinion of Demo, J., 23 N. Y. 467, 46 constructively a part of the territory of the nation to which she belongs, and its laws are operative on board oi her. In this respect the oase Is new. There can be no question that if this case were one arising under the laws of the United States the rule referred to would apply, and acta done on board of her while on the high seas would be governed by those laws. The question now presented is whether in respeel to matters not committed by the Constitution exclusively to the Federal government nor legislated upon by Congress, but regulated entirety 48 Mcdonald v, mallory. [chap, i by State laws, the State to which the vessel belongs can be regarded as the sovereignty whose laws follow her until she comes within the jurisdiction of some other government. This precise question arose in the case of Kelly v. Crapo (45 N. Y. 86 ; and 16 Wall. 610), though in a different form. The question there was whether a vessel upon the high seas was subject to the insolvent laws of the State of Massachusetts, to which State the vessel belonged, that is, where she was registered and her owner resided, so that by operation of those laws, and without an}' act of the owner, the title to the vessel could be transferred while she was at sea by a proceeding in iuvitum, to an official assignee, and his title thus acquired would take precedence of an attachment levied upon her in ihe State of New York after she had come within this State. It was conceded in that case, in this court as well as in the Supreme Court of the United States, that unless the vessel was actually or con- structively within the jurisdiction of the State of Massachusetts her insolvent law could not operate upon her so as to defeat a title acquired under the laws of the State within whose actual territorial jurisdiction she afterwards came. (16 Wall. 622.) But in support of the title of the assignee in insolvenc}' it was urged that the rule before referred to applied to her, and that while at sea she was constructively a part of the territory of the State of Massachusetts and subject to her laws. This court held that the rule invoked was not applicable to a State, and State laws, but that flie jurisdiction referred to was vested in the government of the United States, and that the national territory and its laws only were extended by legal fiction to vessels at sea. This decision was reversed by the Supreme Court of the United States (Crapo v. Kelly, 16 Wall. 610), and as we understand the prevailing opinion in that court, it holds that the relations of a State to the Union do not affect its status as a sovereign, except with respect to those powers and attributes of sovereignty which have by the Con- stitution been transferred to the government of the United States, and that in all other respects it stands as if it were an independent sov- ereign State, unconnected with the other States of the Union. Upon this principle it was held that the vessel while at sea was constructively part of the territory of the State of Massachusetts and subject to its iaws. (16 Wall. 623, 624, 631-632.) It is difficult to conceive any other principle upon which that conclusion could have been reached. In respect to crimes committed on the high seas, the power to provide for their punishment has been delegated to the Federal govern- ment, and for that reason State laws cannot be applicable to them ; but I cannot escape the conclusion that under the principle of the case of Crapo v. Kehy civil rights of action, for matters occurring at sea on board of a vessel belons-ins; to one of the States of the Union must depend upon the laws of that State, unless the}' arise out of some matter over which jurisdiction hns been vested in and exercised by the government of the United States, or over which the State has SECT. I.] MCDONALD V. MALLORY. 49 transferred its rights of sovereignty to the United States ; and that to this extent the vessel must be regarded as part of the territory of the State, while in respect to her relations with foreign governments, crimes committed on board of her, and all other matters over which jurisdiction is vested in the Federal government, she must be regarded as part of the territoiy of the United States and subject to the laws thereof. The facts alleged in the complaint, and admitted by the demurrer, present a strong case for the application of the rule that the laws of the State to which the vessel belongs follow her until she comes within some other jurisdiction. The defendants, by whom the wrong is alleged to have been committed, were, at all times up to its final consum mation by the death of the plaintiff's intestate, citizens and residents of this State, and subject to its laws, and the deceased was also a citizen of this State. The death was caused either by the illegal and negligent act done in this State of lading the dangerous DO© O O and prohibited article on board the vessel and sending the deceased to sea in her thus exposed, or by the negligence or wrongful acts of the defendants committed at sea through their agents. The complaint does not distinctby specify which, but it must have been one or the other. If the latter, then, at the place where the injury was consum- mated there was no law by which to determine whether or not it rendered the defendants liable to an action, unless the law of the State to which the vessel belonged followed her. In the present case the defendants were, at the time of the wrongful act or neglect, and of the injury, within this State and subject to its laws, and none of the objections, suggested in the various cases which have been cited, to subjecting them to liability under the statute, for acts done out of the territory of the State, can appl\\ There can be no double liability, as suggested by Denio, J., in 23 N. Y. 467, 471, for the locus in quo was not subject to the laws of any other country ; nor can it be said that the deceased or his representatives were under the protection of the laws of an}- other government, as is said in some of the other cases cited. It is a case where no confusion or injustice can result from the application of the principle declared by the Supreme Court, that the laws of the State as well as of the United States, enacted within their respective spheres, follow the vessel when on the high seas. In the opinion of the court at General Term in this case it is expressly con- ceded that both the laws of the State and the nation have dominion on a vessel on the high seas, but the demurrer was sustained on the ground that this right of jurisdiction has not been exercised by the State of New York, and its statutes are restricted in their operation to the actual territorial bounds of the State. No such restriction is contained in the statute now under considera- tion. Its language is broad and general and b}- its terms it operates in all places. Its operation on cases arising in other States and countries has not been denied by reason of anything contained in 50 MCDONALD V. MALLORY. [CHAP. I, the act itself or in any other legislative act, but on general principles of law. But the court rests its conclusion upon the act of the Legislature of this State which defines its boundaries and declares that the sovereignty and jurisdiction of this State extends to all the places within the boundaries so declared (1 R. S. 62, 65), and it construes that act as a renunciation or abrogation of any effect which might on general principles of law be given to its statutes on board of vessels on the high seas. We are unable to concur in this view. The act referred to was intended to define simply the actual territorial bounds of the State, and the declaration that its sovereignty and jurisdiction should extend to all places within those bounds was not intended to nor could it operate as a restriction upon subsequent legislation, nor had it any reference to such a question as that now before us. Whatever opera- tion our laws may have on board of vessels at sea depends upon general principles, and there is nothing in the legislation of our State which places it in this respect on a different footing from any other. Is is not claimed that the sovereignty and jurisdiction of this State extend to its vessels when at sea, as they do to places within its boundaries, for all purposes, such as service of process, the execu- tion of judgments and the like, but only that when acts done at sea become the subject of adjudication here, the rights and liabilities of parties may in some cases be determined with reference to our statutes. There is nothing inconsistent with this in the act referred to, or in the assertion of sovereignty and jurisdiction for all purposes over places within the bounds of the State. The decision of this court in Kelly v. Crapo is referred to as the highest evidence that this State never intended that its laws should extend to vessels on the high seas. That decision recognized the general principle that the laws of a nation do so extend, but was based upon the theory that the relation of the State to the Union was such that this attribute of sovereignty had become merged in the powers granted to the general government. But the judgment of the Supreme Court of the United States having established the contrary view, and that in matters not the subject of Federal legislation, the laws of the State follow the vessel, thus making the laws of the State and of the United States, in their respective spheres, together constitute the law of the nation to which the vessel belongs, we adopt that decision as the judgment of the tribunal to whom the ultimate determination of ques- tions of that nature properly belongs. There is nothing in the nature of this action which renders it exclu- sively the subject of Federal cognizance. The jurisdiction of the States and of the United States in the matter of personal torts com- mitted at sea, such as assaults by a master on his crew, injuries to passengers, and the like, are concurrent, though remedies by proceed- ings in rem can be administered only by the Courts of Admiralty of the SECT. I.] REGINA V. ANDERSON. 51 United States. The field of legislation in respect to cases like the present one has not been occupied by the general government and is therefore open to the States. (Steamboat Co. v. Chase, 16 Wall. 522, 530, 533.) Indeed the United States Court of Admiralty would have no jurisdiction in such a case (Steamboat Co. v. Chase, 16 AN all. 522, 530, 533; Sherlock v. Allen, 03 U. S. 99), and there is no greater objection to extending the operation of a statute of this description to a vessel at sea than there was to giving similar opera- tion to a State insolvent law. The judgment of the court below should be reversed, and judgment; rendered for the plaintiff on the demurrer, with leave to the defendants to answer on payment of costs within thirty days. All concur, except Andrews, J., absent. Judgment accordingly. 1 EEGINA v. ANDERSON. Crowx Case Reserved. 1868. [Rejwrted 11 Cox C.C. 198.] Case reserved by Byles, J., at the October Sessions of the Central Criminal Court, 1868, for the opinion of this court. James Anderson, an American citizen, was indicted for murder on board a vessel, belonging to the port of Yarmouth in Nova Scotia. She was registered in London, and was sailing under the British flag. At the time of the offence committed the vessel was in the river Garonne, within the boundaries of the French empire, on her way up to Bordeaux, which city is by the course of the river about ninety miles from the open sea. The vessel had proceeded about half-way up the river, and was at the time of the offence about three hundred yards from the nearest shore, the river at that place being about half a mile wide. The tide flows up to the place and beyond it. Xo evidence was given whether the place was or was not within the limits of the port of Bordeaux. It was objected for the prisoner that the offence having been com- mitted within the empire of France, the vessel being a colonial vessel, and the prisoner an American citizen, the court had no jurisdiction to try him. I expressed an opinion unfavorable to the objection, but agreed to grant a case for the opinion of this court. The prisoner was convicted of manslaughter. J. Barnard Byi.es. Ace Crapo v Kelly, 16 Wall. 010. And see to the same effect a decision of the Court of Cassation, Turin (Italy), April 14, 1880, (8 Clnnet, 551) : a Sicilian sailor on a vessel registered in Lombardy is subject to a section of the Penal Code which ia m force in Lombanly, but not in Sicily.— Ed. 52 REGINA V. ANDERSON. [CHAP. L Bovill, C. J. 1 There is no doubt that the place where the offence was committed was within the territory of France, and that the pris- oner was therefore subject to the laws of France, which the local author- ities of that realm might have enforced if so minded ; but at the same time, in point of law, the offence was also committed within British territory, for the prisoner was a seaman on board a merchant vessel, which, as to her crew and master, must be taken to have been at the time under the protection of the British flag, and, therefore, also amen- able to the provisions of the British law. It is true that the prisoner was an American citizen, but he had with his own consent embarked on board a British vessel as one of the crew. Although the prisoner was subject to the American jurisprudence as an American citizen, and to the law of France as having committed an offence within the terri- tory of France, yet he must also be considered as subject to the juris- diction of British law, which extends to the protection of British vessels, though in ports belonging to another country. From the pas- sage in the treatise of Ortolan, already quoted, it appears that, with regard to offences committed on board of foreign vessels within the French territory, the French nation will not assert their police law unless invoked by the master of the vessel, or unless the offence leads to a disturbance of the peace of the port ; and several instances where that course was adopted are mentioned. Among these are two cases where offences were committed on board American vessels — one at the port of Antwerp, and the other at Marseilles — and where, on the local authorities interfering, the American court claimed exclusive jurisdic- tion. As far as America herself is concerned, it is clear that she, by the statutes of the 23rd of March, 1825, has made regulations for per- sons on board her vessels in foreign parts, and we have adopted the same course of legislation. Our vessels must be subject to the laws of the nation at any of whose ports they may be, and also to the laws of our country, to which they belong. As to our vessels when going to foreign parts we have the right, if we are not bound, to make regula- tions. America has set us a strong example that we have the right to do so. In the present case, if it were necessary to decide the question on the 17 & 18 Vict. c. 104, I should have no hesitation in saying that we now not only legislate for British subjects on board of British ves- sels, but also for all those who form the crews thereof, and that there is no difficulty in so construing the statute ; but it is not necessary to decide that point now. Independently of that statute, the general law is sufficient to determine this case. Here the offence was committed on board a British vessel by one of the crew, and it makes no difference whether the vessel was within a foreign port or not. If the offence had been committed on the high seas it is clear that it would have been within the jurisdiction of the Admiralty, and the Central Criminal Court has now the same extent of jurisdiction. Does it make any 1 Arguments of counsel and the concurring opinions of Chanxell, B., and Black- burs and Lush, J J., are omitted. — Ed. SECT. I.J REGINA V. ANDERSON. 53 difference because the vessel was in the river Garonne half-way between the sea and the head of the river? The place where the offence was committed was in a navigable part of the river below bridge, and where the tide ebbs and flows, and great ships do lie and hover. An offence committed at such a place, according to the author- ities, is within the Admiralty jurisdiction, and it is the same as if the offence had been committed on the high seas. On the whole I come to the conclusion that the prisoner was amenable to the British law, and that the conviction was right. Byles, J. I am of the same opinion. I adhere to the opinion that I expressed at the trial. A British ship is, for the purposes of this question, like a floating island ; and, when a crime is committed on board a British ship, it is within the jurisdiction of the Admiralty Court, and therefore of the Central Criminal Court, and the offender is as amenable to British law as if he had stood on the Isle of Wight and committed the crime. Two English and two American cases decide that a crime committed on board a British vessel in a river like the one in question, where there is the flux and reflux of the tide, and wherein U'reat ships do hover, is within the jurisdiction of the Admiralty Court; and that is also the opinion expressed in Kent's Commentaries. The only effect of the ship being within the ambit of French territory is that there might have been concurrent jurisdiction had the French claimed it. I give no opinion on the question whether the case comes within the enactment of the Merchant Shipping Act. 1 Vadghan, C. J., in Craw v. Ramsey, Vaughan 274 (1670). One ot my brothers . . . said England and Ireland were two distinct king- doms, and no otherways united than because they had one Soveraign. Had this been said of Scotland and England it had been right, for they are both absolute kingdoms, and each of them sui juris. But Ireland far otherwise ; for it is a dominion belonging to the crown of England, and follows that it cannot be separate from it but by Act of Parliament of England, no more than Wales, Guernsey, Jersey, Ber- wick, the English Plantations, all which are dominions belonging to the realm of England, though not within the territorial dominion or realm of England, but follow it and are :i part of its royalty. . . . Wales, after the conquest of it, by Edward the First, was annext to England, jure proprietati8 12 Ed. 1, by the statute of Ruthland only, and after more really by 27 II. 8 c. 20; but at first received laws from England as Ireland did; but not proceeded by writs out of the English Chan- cery, but had a Chancery of his own, as Ireland hath; was not bound by the laws of England, unnamed, until 27 II. 8, no more than Ireland now is. Ireland in nothing differs from it but in having a Parliament gratia Regis, subject to the Parliament of England. It might have i See Beg. v. Lopez, 7 Cox C. C. 131 ; Eteg. o Armstrong, 13 Cox C, C. L84. — Ed (^tw(txr< 54 CAMPBELL V. HALL. [CHAP. L, had so, if the King pleased, but it was annext to England. None doubts Ireland as conquer'd as it, and as much subject to the Parlia- ment of England if it please. Vaughan, C. J., Wilde and Archer, JJ., in the same case (2 Ventris 1). Ireland was a conquered kingdom, the conquest cora- pleated, if not begun, in King Henry the Second's time ; in whose time there is no record of* an} 7 establishment. And being a Christian king they remained governed b\- their own laws, until King John {anno 12 regni sui) by Charter (for so they conceived it to be, and not by Parliament; for it appears that the nobles were sworn, which is not usual in Acts of Parliament, neither is it Teste Hege in Parliamento) introduced the English laws. Yet it ever hath remained a distinct' kingdom, viz. from the bringing in the laws by King John, M. Paris Hist. 230, and Calvin's Case in 7 Co. 22. 23 ; the Conquest brought it infra dominium Regis, sed non infra Megnum Anglian. Orurke committed treason in Ireland, and it was held triable by Commission, by 33 H. 8. as a treason out of the Realm. 20 H. 6. 8, the Judges here are not bound to take notice of the laws of Ireland. Fitzh. Voucher 239, a man in Ireland cannot be vouched. Anders. 262, 263, 2 Inst. 2, it is said, Magna Charta nor the Statute laws here did not extend to Ireland until Poining's Law, 10 H. 7, tho" in truth it appears to be before by 8 E. 4. cap. 10 ; neither are they obliged by any statute since unless named. CAMPBELL v. HALL. King's Bench. 1774. [Reported Cowper, 204.] This case was very elaborately argued four several times ; and now on this day Lord Mansfield stated the case, and delivered the unani- mous opinion of the court, as follows : This is an action that was brought by the plaintiff, James Campbell, who is a natural born subject of this kingdom, and who, upon the 3d of March, 1763. purchased a plantation in the island of Grenada: and it is brought against the defendant William Hall, -who was a collector for His Majesty of a duty of four and a half per cent upon all goods and sugars exported from the island of Grenada. 1 ... A special verdict was found, which states as follows: That the island of Grenada was taken by the British arms, in open war, from the French king. . . . The special verdict then states. . . a proc- lamation under the great seal, bearing date the 7th October, 1763, wherein amongst other things it is said as follows : — Whereas it will greatly contribute to the speedy settling our said governments, of which the island of Grenada is one, that our loving subjects should be informed of our paternal care for the security of the 1 Part of the opinion is omitted. — Ed. SECT. I.] CAMPBKLL V. HALL. 55 liberties and properties of those who are and shall become inhabitants thereof: we have thought fit to publish and declare by this our procla- mation, that we have in our letters patent under our great seal of Great Britain, by which the said governments are constituted, given express power and direction to our governors of the said colonies re- spectively, that so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and consent of the members of our council, summon and call general assemblies, within the said governments respectively, in such manner and form as is used and directed in those colonies and provinces of America, which are already under our immediate government ; and we have also given power to the said governors, with the consent of our said councils, and the representatives of the people to be summoned as aforesaid, to make, constitute, and ordain laws, statutes, and ordinances, for the public peace, welfare, and good government of our said colonies and the in- habitants thereof, as near as ma}- be agreeable to the laws of England, and under such regulations and restrictions, as are used in our other colonies. The next instrument stated in the special verdict, is the letters patent under the great seal, or rather a proclamation, bearing date the 2Gth March, 17G4 ; wherein, the King recites a surve}" and division .of the ceded islands, and that he had ordered them to be divided into allotments, as an invitation to purchasers to come in and purchase upon the terms and conditions specified in that proclamation. The next instrument stated, is the letters patent under the great seal, bearing date the 9th of April, 1764. In these letters there is a commission appointing General Melville governor, with a power to summon an assembly as soon as the state and circumstances of the island would admit, and to make laws with consent of the governor and council, with reference to the manner of the other assemblies of the king's provinces in America. This instrument is dated the 9th of April, 1704. The governor arrived in Grenada on the 14th December, 17G4, and before the end of the year 17G5, an assembly actually met.in the island of Grenada. But before the arrival of the governor at Grenada, indeed before his departure for London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters patent under the great seal, bearing date the 20th July, 1764. Wherein, the King reciting, that whereas, in Barbadoes, and in all the British Leeward [slands, there was a duty of four and an half per cent upon all sugars, etc. exported ; and reciting in these words; that whereas it is reasonable and expedient, and of importance to our other sugar islands, that t lie like duty should take place in our said island of Grenada; proceeds thus : we have though' lit, and our royal will and pleasure; is. and we do hereby, by virtue of our prerogative royal, order, direct, and appoint, that from and after the 29th day of September next ensuing the date of these presents, a duty or impost of four and an half per cent in specie, shall be raised 56 CAMPBELL V. HALL. [CHAP. I and paid to us, our heirs and successors, upon all dead commodities, the growth and produce of our said island of Grenada, that shall be shipped off from the same, in lieu of all customs and import duties, hitherto collected upon goods imported and exported into and out of the said island, under the authority of His Most Christian Majesty. The special verdict then states that in fact this duty of four and an half per cent is paid in all the British Leeward Islands, and sets forth the several acts of assembly relative to these duties. They are public acts : therefore, I shall not state them ; as any gentleman may have access to them ; they depend upon different circumstances and occa- sions, but are all referable to those duties in our islands. This, with what I set out with in the opening, is the whole of the special verdict that is material to the question. The general question that arises out of all these facts found by the special verdict, is this ; whether the letters patent under the great seal, bearing date the 20th Jury, 1764, are good and valid to abolish the French duties ; and in lieu thereof to impose the four and an half per cent duty above mentioned, which is paid in all the British Leeward Islands? It has been contended at the bar, that the letters patent are void on two points ; the first is, that although they had been made before the proclamation of the 7th October, 1763, yet the King could not exercise such a legislative power over a conquered country. The second point is, that though the King had sufficient power and authority before the 7th October. 1763, to do such legislative act. yet before the letters patent of the 20th July, 1764, he had divested him- self of that authority. A great deal has been said, and many authorities cited relative to propositions, in which both sides seem to be perfectly agreed ; an'd which, indeed, are too clear to be controverted. The stating some of those propositions which we think quite clear, will lead us to see with greater perspicuity, what is the question upon the first point, and upon what hinge it turns. I will state the propositions at large, and the first is this : A country conquered by the British arms becomes a dominion of the King in the right of his crown ; and, therefore, necessarily subject to the legislature, the Parliament of Great Britain. The 2d is, That the conquered inhabitants once received under the king's protection, become subjects, and are to be universally considered in that light, not as enemies or aliens. The 3d, That the articles of capitulation upon which the country is surrendered, and the articles of peace by which it is ceded, are sacred and inviolable according to their true intent and meaning. The 4th, That the law and legislative government of every dominion, equally affects all persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. Who- ever purchases, lives, or sues there, puts himself under the law of the SECT. I.] CAMPBELL V. HALL. 57 place. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives. The 5th, That the laws of a conquered country continue in force, until they are altered by the conqueror; the absurd exception as to Pagans, mentioned in Calvin's case, shows the universality and antiquity of the maxim. For that distinction could not exist before the Christian sera; and in all probability arose from the mad enthusiasm of the Croisades. In the present case the capitulation expressly provides and agrees, that they shall continue to be governed by their own laws, until His Majesty's further pleasure be known. The 6th, and last proposition is, that if the King (and when I say the King, 1 always mean the King without the concurrence of Parliament), has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles : he cannot exempt an inhabitant from that particular dominion ; as, for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects ; and so in many other instances which might be put. But the present change, if it had been made before the 7tb October, 1763, would have been made recently after the cession of Grenada by treaty, and is in itself most reasonable, equitable, and political ; for it is putting Grenada, as to duties, on the same footing with all the British Leeward Islands. If Grenada paid more it would have been detri- mental to her; if less, it must be detrimental to the other Leeward Islands: nay, it would have been carrying the capitulation into execu- tion, which gave the people of Grenada hopes, that if any new tax was laid on, their case would be the same with their fellow subjects in the other Leeward Islands. The only question then on this first point is. Whether the King had a power to make such change between the 10th of February, 1763, the day the treaty of peace was signed, and the 7th October, 1763? Tak ing these propositions to be true which I have stated ; the only question is, Whether the King had of himself that power? It is left by the constitution to the King's authority to grant or refuse a capitulation : if he refuses, and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection and grants them their property, he h:is a power to fix such terms and conditions as he thinks proper. lie is intrusted with making the treaty of peace : he may yield up the con- quest, or retain it upon what terms he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of govern ment of a conquered dominion. To go into the history of the conquests made by the Crown of Eng land. The conquest and the alteration of the laws of Ireland have been 58 CAMPBELL V. HALL. [CHAP. I. variously and learnedry discussed b}" lawyers and writers of great fame, at different periods of time; but no man ever said, that the change in the laws of that country was made by the Parliament of England : no man ever said the Crown could not do it. The fact in truth, after all the researches which have been made, comes out clearly to be, as it is laid down by Lord Chief Justice Vaughan, that Ireland received the laws of England, by the charters and commands of Henry II., King John, Henry III., and he adds an et ccetera to take in Edward I., and the subsequent kings. And he shows clearly the mistake of imagining that the charters of the 12th of John, were by the assent of a Parlia- ment of Ireland. Whenever the first Parliament was called in Ireland, that change was introduced without the interposition of the Parliament of England ; and must, therefore, be derived from the Crown. Mr. Barrington is well warranted in saying that the statute of Wales, 12th Edward I., is eertainly no more than regulations made bj r the King in his council, for the government of Wales, which the preamble says was then totally subdued. Though, for various political purposes, he feigned Wales to be a feoff of his crown ; yet he governed it as a con- quest. For Edward I. never pretended that he could, without the as- sent of Parliament, make laws to bind any part of the realm. Berwick, after the conquest of it, was governed by charters from the Crown without the interposition of Parliament, till the reign of James I. All the alterations in the laws of Gascony, Guienne, and Calais, must have been under the King's authority ; because all the acts of Parliament relative to them are extant. For the}' were in the reign of Edward III., and all the acts of Parliament of that time are extant. There are some acts of Parliament relative to each of these conquests that I have named, but none for any change of their laws, and particu- larly with regard to Calais, which is alluded to as if their laws were considered as given b}* the Crown. Besides the garrison, there are inhabitants, property, and trade in Gibraltar : ever since that conquest the King has made orders and regulations suitable to those who live, etc. or trade, or enjoy property in a garrison town. The Attorney-General alluded to a variety of instances, and several very lately, in which the King had exercised legislation in Minorca: there, there are many inhabitants, much property, and trade. If it is said, that the King does it as coming in the place of the King of Spain, because their old constitution remains, the same argument holds here. For before the 7th October 1763, the original constitution of Grenada continued, and the King stood in the place of their former sovereign. After the conquest of New York, in which most of the old Dutch inhabitants remained, King Charles II. changed the form of their con- stitution and political government ; by granting it to the Duke of York, to hold of his crown, under all the regulations contained in the letters patent. SECT. I.] CAMrBELL V. HALL. 59 It is not to be wondered at that an adjudged case in point has not been produced. No question was ever started before, but that the King has a right to a legislative authority over a conquered country ; it was never denied in Westminster Hall; it never was questioned in Par- liament. Coke's report of the arguments and resolutions of the judges in Calvin's case, lays it down as clear. If a king (says the book) comes to a kingdom by conquest, he may change and alter the laws of that kingdom ; but if he comes to it by title and descent, he cannot change the laws of himself without the consent of Parliament. It is plain he alludes to his own country, because he alludes to a country where there is a Parliament. The authority also of two great names has been cited, who take the proposition for granted. In the year 1722, the assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearge, to know ; ' what could be done if the assembly should obsti- nately continue to withhold all the usual supplies." They reported thus: " If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants ; but if it was to be considered in the same light as the other colonies, no tax could be imposed on the inhabitants but by an assembly of the island, or by an Act of Parliament." They considered the distinction in law as clear, and an indisputable consequence of the island being in the one state or in the other. Whether it remained a conquest, or was made a colony, they did not examine. I have upon former occasions traced the constitution of Jamaica, as far as there are papers and records in the offices, and can- not find that any Spaniard remained upon the island so late as the restoration ; if any, there were very few. To a question I lately put to a person well informed and acquainted with the country, his answer was, there were no Spanish names among the white inhabitants, there were among the negroes. King Charles II. by proclamation invited settlers there, he made grants of lands : he appointed at first a gov- ernor and council only : afterwards he granted a commission to the governor to call an assembly. The constitution of every province, immediately under the King, has arisen in the same manner ; not from grants, but from commissions to call assemblies : and, therefore, all the Spaniards having left the island or been driven out, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonc inf to him in right of his crown ; like the cases of the island of St. Helena and St. John, mentioned by Mr. Attorney-General. A maxim of constitutional law as declared by all the judges in Cal- vin's case, and which two such men, in modern times, as Sir Philip Yorke and Sir Clement Wearge, took for granted, will require some authorities to shake. But on the other side, no hook, no saying, no opinion has been cited , no instance in any period of history produced, where a doubt has been 60 CAMPBELL V. HALL. [CHAP. I. raised concerning it. The counsel for the plaintiff no doubt labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration we are of opinion, that before the letters patent of the 20th July, 1764, the King had precluded himself from the exercise of a legislative authority over the island of Grenada. The first and material instrument is the proclamation of the 7th Octo- ber, 1763. See what it is that the King there says, with what view, and how he engages himself and pledges his word. •• For the better security of the liberty and property of those who are or shall become inhabitants of our island of Grenada, we have de- clared by this our proclamation, that we have commissioned our gov- ernor (as soon as the state and circumstances of the colony will admit) to call an assembly to enact laws," etc. With what view is this made? It is to invite settlers and subjects: and why to invite? That they might think their properties, etc. more secure if the legislation was vested in an assembly, than under a governor and council only. Next, having established the constitution, the proclamation of the 20th March. 1761. invites them to come in as purchasers: in further confirmation of all this, on the 9th April, 1761, three months before July, an actual commission is made out to the governor to call an assembly as soon as the state of the island would admit thereof. You observe, there is no reservation in the proclamation of any legis- lature to be exercised by the King, or by the governor and council under his authority in any manner, until the assembly should meet; but rather the contrary : for whatever construction is to be put upon it, which, perhaps, rnay be very difficult through all the cases to which it may be applied, it alludes to a government by laws in being, and by courts of justice, not by a legislative authority, until an assembly should be called. There does not appear from the special verdict, any impediment to the calling an assembly immediately on the arrival of the governor, which was in December, 1764. But no assembly was called then or at any time afterwards, till the end of the year 1765. We therefore think, that by the two proclamations and the commis- sion to Governor Melville, the King had immediately and irrecoverably granted to all who were or should become inhabitants, or who had, or should acquire property in the island of Grenada, or more generally to all whom it might concern, that the subordinate legislation over the island should be exercised by an assembly with the consent of the gov- ernor and council, in like manner as the other islands belonging to the King. Therefore, though the abolishing the duties of the French King and the substituting this tax in its stead, which according to the finding in this special verdict is paid in all the British Leeward Islands, is just and equitable with respect to Grenada itself, and the other British Leeward Islands, yet, through the inattention of the King's servants, in inverting the order in which the instruments should have passed, SE CT. L] DOBEEE V. NAPIER. 61 and been notoriously published, the last act is contradictory to, and a violation of the first, and is, therefore, void. How proper soever it may be in respect to the object of the letters patent of the 20th July, 1764, to use the words of Sir Philip Yorke and Sir Clement Wearge, " it can only now be done, by the assembly of the island, or by an act of the Parliament of Great Britain. " The consequence is, judgment must be given for the plaintiff DOBREE v. NAPIER. Court of Common Pleas. 1836. [Reported 2 Bingham's New Cases, 781]. Tindal, C. J. 1 The plaintiffs declare in this action against the two defendants for seizing and taking a steam vessel of the plaintiffs, and converting the same to their use. The defendants sever in their pleading, but each puts upon the record substantially the same justification, to which the answers given by the replication 'are the same, and the same questions of law are raised thereon. It will be sufficient, therefore, to consider the case as it is raised upon the pleadings with respect to the first-named defendant. Charles Napier. The third special plea of the defendant Charles Napier alleges, that as a servant of the Queen of Portugal, and by her command, he seized and took the steam vessel of the plaintiffs as lawful prize, and that such proceedings were thereupon had, according to the laws of Portugal, in a court of law in the kingdom of Portugal of competent jurisdiction in that behalf, that afterwards, in and by the said court, the said steam vessel was adjudged to have been justly and lawfully taken, and was then in due course and form of law condemned as lawful prize, and as forfeited to the Queen of Portugal. In answer to this plea, the plain- tiff in his replication alleges certain facts, which bring the service of the defendant Charles Napier under the Queen of Portugal, upon the occasion in question, within the restrictions of the statute 59 (i. 3. c. 69. s. 2., generally known by the name of the Foreign Enlistment Act; and to this replication the defendant demurred. We think it is perfectly clear, that except for the facts introduced by the replication, the pie;., standing alone and unanswered, would be a conclusive bar to the plaintiffs right of action. The sentence of a foreign court of competent jurisdiction, condemning a neutral vessel taken in war, as prize, is binding and conclusive on ail the world ; and i The opinion only is given ; it sufficiently states the case. Part of the opinion, in volving a different question, ie omitted. — Ed. & 62 DOBREE V. NAPIER. [CHAP. I. do English court of law can call in question the propriety, or the grounds, of such condemnation. It is sufficient to refer to the case of Hughes v. Cornelius and others, Sir T. Raym. 473, as a decisive authority on that point. It follows that after the sentence of the Court of Lisbon, it cannot be controverted in this, or any other English court, that the steam vessel was rightly taken by the Queen of Portugal as prize, and that all the property of the plaintiffs therein became, by such capture and condemnation, forfeited to the Queen, and vested in her. But the plaintiffs contend that the replication, by the facts therein disclosed, shows that the service of the defendant Charles Napier under the Queen of Portugal, by virtue of which service alone he justifies the seizing of the steam vessel, is made illegal by an English statute, viz. the statute 59 G. 3. c. 69., and that such illegality of the service pre- vents him from making any justification under the Queen of Portugal, and renders him liable to all the damages which the plaintiffs have sus- tained by reason of the seizure. And whether the conclusion which the plaintiffs draw from these premises is the just conclusion or not, is the question between these parties. The seizure by the Queen of Portugal must be admitted to be justifiable ; no objection can be taken against the forfeiture of the property in this vessel to the Queen, under the sentence of condemnation. The plaintiffs, therefore, in contem- plation of law, have sustained no legal injury by reason of the seizure. Again no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or an}' other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize ; or can den} - , that the relation of lord and servant, de facto, subsists between the Queen and the defend- ant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this, country. Still, however, notwithstanding the loss by seizure is such, as that no court of law can consider it an injury, or give any redress for it ; and that the service and employment of the defendant is a ser- vice and employment de facto; the plaintiffs contend they can make the servant responsible for the whole loss, only by reason of his being obnoxious to punishment in this country, for having engaged in such service. No case whatever has been cited which goes the length of this proposition ; the authorities referred to establishing only, that where an act prohibited by the law of this country has been done, the doer of such illegal act cannot claim the assistance of a court of law in this country to enforce such act, or any benefit to be derived from it, or any contract founded upon it. To the full extent of these authorities, we entirely accede ; but we cannot consider the law to be, that where the act of the principal is lawful in the country where it is done, and the authority under which such act is done is complete, binding, and un- questionable there, the servant who does the act can be made responsible in the courts of this country for the consequence of such act. to the same SECT. I.J RBGINA V. LESLEY. 63 extent as if it were originally unlawful, merely by reason of a personal disability imposed by the law of this country upon him, for contracting such engagement. Such a construction would effect an unreasonable alteration in the situation and rights of the plaintiffs and the defendant. The plaintiffs would, without any merit on their part, recover against the servant the value of the property to which they had lost all claim and title by law against the principal; and the defendant, instead of the measure of punishment intended to be inflicted by the statute for the transgression of the law, might be made liable to damages of an incalculable amount. Again, the only ground upon which the authority of the servant is traversable at all in an action of trespass, is no more than this ; to protect the person or property of a party from the offi- cious and wanton interference of a stranger, where the principal might have been willing to waive his rights. It is obvious that the full benefit of this principle is secured to the plaintiffs by allowing a traverse of the authority de facto, without permitting them to impeach it by a legal objection to its validity, in another and foreign country. And we think there is no material difference between the third and the first and second special pleas on this record. For as we hold that the au- thority of the Queen of Portugal to be a justification of the seizure "as prize," there is as little doubt but that she might direct a neutral ves- sel to be seized when in the act of breaking a blockade by her estab- lished, which is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second. "We therefore give judgment on the first three special pleas, for the defendants. Judgment for Defendants. 1 REGINA v. LESLEY AWM Crown Case Reserved. 1860. ^Reported Bell, 220 ; 8 Cox C. C. 269.J Erle, C. J. 2 In this case the question is whether a conviction for false imprisonment can be sustained upon the following facts. The prosecutor and others, being in Chili, and subjects of that state, were banished by the government from Chili to England. i See Underbill v. Hernandez, 168 U. S. 250. — Ed. 2 The opinion only is given. In addition to the facts therein Btated, the following may be useful : — It appeared by tbe evidence for tbe prosecution thai the prisoners requested the defendant to take them to Peru, which was near, offering to pay hini what the Govern- ment of Chili paid him, but that the defendanl refused, on the ground that his contract required him to carry the prisoners to Liverpool. They made no other request to he put ashore. The vessel touched at tin- Azores, and the defendant made boles in the boats to prevent the escape of the prisoners. Watson, I'.., who tried the case, directed a verdict of guilty, and reported the case to the Court for Crown Cases Reserved. — Ed. 64 REGINA V. LESLEY. [CHAP. I. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with that government to take the prosecutor and his companions from Valparaiso to Liverpool, and they were accordingly brought on board the defen- dant's vessel by the officers of the government and carried to Liverpool by the defendant under his contract. Then, can the conviction be sustained for that which was done within the Chilian waters? We answer no. We assume that in Chili the act of the government towards its sub- jects was lawful ; and although an English ship in some respects carries with her the laws of her country in the territorial waters of a foreign state, yet in other respects she is subject to the laws of that state as to acts done to the subjects thereof. We assume that the government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government and under its author- ity. In Uobree v. Napier, 2 Bing. N. C. 781, the defendant, on behalf of the Queen of Portugal, seized the plaintiff's vessel for violating a blockade of a Portuguese port in time of war. The plaintiff brought trespass ; and judgment was for the defendant, because the Queen of Portugal, in her own territory, had a right to seize the vessel and to employ whom she would to make the seizure ; and therefore the defend- ant, though an Englishman seizing an English vessel, could justify the act under the employment of the Queen. We think that the acts of the defendant in Chili become lawful on the same principle, and therefore no ground for the conviction. The further question remains, Can the conviction be sustained for that which was done out of the Chilian territory? And we think it can. It is clear that an English ship on the high sea, out of any foreign territory, is subject to the laws of England ; and persons, whether for- eign or English, on board such ship, are as much amenable to English law as they would be on English soil. In Regina v. Sattler, 1 D. & B. C. C. 525, this principle was acted on, so as to make the prisoner, a for- eigner, responsible for murder on board an English ship at sea. The same principle has been laid down by foreign writers on international law, among which it is enough to cite Ortolan, " Sur la Diplomatic de la Mer," liv. 2. cap. 13. The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 267, makes the master and seamen of a British ship responsible for all offences against property or person committed on the sea out of her Majesty's dominions as if they had been committed within the jurisdiction of the Admiralty of England. Such being the law, if the act of the defendant amounted to a false imprisonment he was liable to be convicted. Now, as the contract of the defendant was to receive the prosecutor and the others as prisoners on board his ship, and to take them, without their consent, over the sea to England, although he was justified in first receiving them in Chili, SECT. II.] BLANKARD V. GALDY. 65 yet that justification ceased when he passed the line of Chilian juris- diction, and after that it was a wrong which was intentionally planned and executed in pursuance of the contract, amounting in law to a false imprisonment. It may be that transportation to England is lawful by the law of Chili, and that a Chilian ship might so lawfully transport Chilian sub- jects ; but for an English ship the laws of Chili, out of the state, are powerless, and the lawfulness of the acts must be tried by English law. For these reasons, to the extent above mentioned, the conviction is affirmed. Conviction confirmed accordingly. Lord Mansfield, C. J., in Rex v. Vaughan, 4 Burr. 2494, 2500 (1769). The argument is strong that these statutes do not extend to Jamaica, though they were enacted long before that island belonged to the Crown of England. If Jamaica was considered as a conquest, they would retain their old laws, till the conqueror had thought fit to alter them. If it is considered as a colony (which it ought to be, the old inhabitants having left the island), then these statutes are positive regulations of police, not adapted to the circumstances of a new colony ; and therefore no part of that law of England which every colony from necessity is supposed to carry with them at their first plantation. No Act of Parliament made after a colony is planted is construed to extend to it, without express words showing the intention of the legislature to be ' that it should.' ^»nA. SECTION II. THE ORIGIN AND CHANGE OF LAW. )Vcu( BLANKARD v. GALDY. King's Bfnch. 1093. [Reported 2 Salkeld, 411.] In debt on a bond, the defendant prayed oyer of the condition, and pleaded the statute E. G. against buying offices concerning the admin- istration of justice ; and averred, That this bond was oivon for the purchase of the office of provost-marshal in Jamaica, and that it con- cerned the administration of justice, and that Jamaica is part of the revenue and possessions of the Crown of England : The plaintiff replied, 66 BLANKARD V. GALDY. [CHAP. L that Jamaica is an island beyond the seas, which was conquered from the Indians and Spaniards in Queen Elizabeth's time, and the inhabit- ants are governed by their own laws, and not by the laws of England : The defendant rejoined, That before such conquest they were governed by their own laws ; but since that, by the laws of England : Shower argued for the plaintiff, that, on a judgment in Jamaica, no writ of error lies here, but only an appeal to the Council ; and as they are not represented in our Parliament, so they are not bound by our stat- utes, unless specially named. Vide And. 115. Pemberton contra argued, that b}- the conquest of a nation, its liberties, rights, and prop- erties are quite lost ; that by consequence their laws are lost too, for the law is but the rule and guard of the other ; those that conquer, can- not by their victor}' lose their laws, and become subject to others. Vide Vaugh. 405. That error lies here upon a judgment in Jamaica, which could not be if they were not under the same law. Et per Holt, C. J. & Cur., First, in case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there ; so it seemed to be agreed. Secondfy, Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. The Isle of Man and Ireland are part of the possessions of the Crown of England ; yet retain their ancient laws : That in Davis 36. it is not pretended, that the custom of tanistiy was determined by the conquest of Ireland, but by the new settlement made there after the conquest : That it was im- possible the laws of this nation, by mere conquest, without more, should take place in a conquered country ; because, for a time, there must want officers, without which our laws can have no force : That if our law did take place, yet the}- in Jamaica having power to make new laws, our general laws may be altered b}' theirs in particulars; also they held, that in the case of an infidel country, their laws by conquest do not entirely cease, but only such as are against the law of God ; and that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. Judgment pro quer. 1 1 Another report of the same case may he found in 4 Mod. 222. In thnt case the Court is reported to have said : " And therefore it was held, that Jamaica was not gov- erned by the laws of England after the conquest thereof, till new laws were made : for they had neither sheriff or counties; they were only an assembly of people which are not bound by our laws, unless particularly mentioned. In Barbadoes all freeholds are subject to debts, and are esteemed as chattels till the creditors are satisfied, and then the lands descend to an heir; but the law is otherwise here ; which shows that though that island is parcel of the possessions of England, yet it is not governed by the laws made here, but by their own particular laws and customs." Ace. Earl Derby's Case, 2 And. 116 ; Mem- 2 P. Wms. 75. See Cross v. Harrison, 16 How. 164; Airhart v. Massieu, 98 U. S. 491. — En. SECT. II. 'I ADVOCATE-GENERAL V. RANEE SURNOMOYE DOSSEE. 67 THE ADVOCATE-GENERAL OF BENGAL v. RANEE SURNOMOYE DOSSEE. Judicial Committee oe the Privy Council. 1S63. [Reported 2 Moore's Privy Council, new series, 22.] Their Lordships' judgment was now delivered by The Right Hon. Lord Kingsdowx. The question in this case arises on the claim of the Crown to a por- tion of the personal estate of Rajah Kistonauth Roy, who destined himself in Calcutta on the 31st of October, 1844, and was found b} T inquisition to have been felo de se. We understand that the Rajah had a residence in Calcutta, though his Raj, or Zemindary, was at some distance from that cit} - . He was a Hindoo both by birth and religion. On the morning of the day on which he destroyed himself he made a will, by which he left a large portion of his property to the East India Company for charitable purposes. The will was disputed by his widow, who was his heiress, and a suit was instituted by her against the East India Compaq- and others, to determine its validity. It was agreed between the litigating parties that the question should be tried by an issue at law. The widow in- sisted, amongst other objections, that the testator was not in a fit state of mind to make a will at the time of its execution. The issue was tried, and a verdict was found Iry the judges against the will, upon what ground does not distinctly appear, and the verdict was acquiesced in by the Indian Government. If the Crown, by virtue of the inquisition, was entitled to all the per- sonal property of the Rajah, the validity or invalidity of the will was, as regards his personal estate, of no importance. Now, the inquisition had found that the goods and chattels of the Rajah when he committed self-murder amounted within Calcutta to Rs. 9, 87, 063, and without the town of Calcutta to Rs. 2, 89, 500; and it stated that all his property was claimed by the widow. No claim of any part of it appears at that time to have been set up by the East India Company on behalf of the Crown, and very large sums were from time to time, by the order, or with the consent of the Indian Government, paid over to the widow in the years 1810 and 1847. A portion, however, of the Rajah's personal estate, amounting to between six and seven lacs of Rupees, was secured in the Supreme Court, in order to provide for the payment of life annuities to two ladies, both then living. The existence of these charges seems to have been the only reason why this fund was not transferred to the widow with the rest of the estate. One of the annuitants is now dead, and the fund reserved to answer 68 ADVOCATE-GENERAL V. RANEE SURNOMOYE DOSSEE. [CHAP. I. her annuity is of course set free. This fund is now claimed by the Indian Government under the finding on the inquisition of 1844. It is stated in the affidavit of a gentleman who was manager for the widow on the death of her husband, that he was advised in 1844, by three English counsel of eminence, whom he names, that the verdict on the inquisition might be set aside on the ground both of misdirec- tion by the coroner, and as being against the weight of evidence, but that proceedings were not taken for that purpose, because the govern- ment represented, through its law agents, that no claim would ever be made under the verdict. If the facts be such as we have stated, it is impossible not to feel some surprise at the present demand ; and, if we differed from the court below, it would deserve much consideration, whether a claim which seems to have been abandoned in 1844, ought now to be enter- tained. But these facts do not seem to have been noticed by the judges in India; there may possibly be circumstances with which we are unacquainted to account for the course taken by the government, and we think it better to dispose of the case on the merits. At what time then, and in what manner, did the forfeiture attached by the law of England to the personal property of persons committing suicide in that countr} - , become extended to a Hindoo committing the same act in Calcutta? The sum of the appellant's argument was this : that the English Criminal Law was applicable to natives as well as Europeans within Calcutta, at the time when the death of the Rajah took place, and the sovereignt}- of the English Crown was at that time established ; that the English settlers when they first went out to the East Indies in the reign of Queen Elizabeth took with them the whole law of England, both civil and criminal, unless so far as it was inapplicable to them in their new condition ; that the law offelo de se was a part of the crimi- nal law of England which is not inapplicable to them in their new con- dition, and that it, therefore, became part of the law of the country. Where Englishmen establish themselves in an uninhabited or bar- barous country, they carry with them not only the laws, but the sove- reignty of their own State ; and those who live amongst them and become members of their community become also partakers of, and subject to the same laws. But this was not the nature of the first settlement made in India — it was a settlement made by a few foreigners for the purposes of trade in a very populous and highly civilized country, under the government of a powerful Mohammedan ruler, with whose sovereignty the English Crown never attempted nor pretended to interfere for some centuries afterwards. If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories, which thev were SECT. II.] ADVOCATE-GENERAL V. RANEE SURNOMOYE DOSSEE. 69 permitted by the ruling powers of India to establish ; but this was not on the ground of general international law, or because the Crown of England or the laws of England had any proper authority in India, but upon the principles explained by Lord Stowell in a very celebrated and beautiful passage of his judgment in the case of " The Indian Chief." (3 Rob. Adm. Rep. 28). The laws and usages of Eastern countries where Christianity does not prevail are so at variance with all the principles, feelings, and habits of European Christians that they have usually been allowed by the indulgence or weakness of the potentates of those countries to re- tain the use of their own laws, and their factories have for many pur- poses been treated as part of the territory of the Sovereign from whose dominions they come. But the permission to use their own laws by European settlers does not extend those laws to natives within the same limits, who remain to all intents and purposes subjects of their own Sovereign, and to whom European laws and usages are as little suited as the laws of the Mohammedans and Hindoos are suited to Euro- peans. These principles are too clear to require any authority to sup- port them, but they are recognized in the judgment to which we have above referred. But, if the English laws were not applicable to Hindoos on the first settlement of the countiy, how could the subsequent acquisition of the rights of sovereignty by the English Crown make any alteration? It might enable the Crown b}* express enactment to alter the laws of the country, but until so altered the laws remained unchanged. The ques- tion, therefore, and the sole question in this case is, whether by ex- press enactment the English law of/'elo de se, including the forfeiture attached to it, had been extended in the year 1844 to Hindoos destroy- ing themselves in Calcutta. We were referred by Mr. Melvill, in his ver}- able argument, to the charter of Charles II. in 1661, as the first, and indeed the only one which in express terms introduces English law into the East Indies. It gave authority to the company to appoint governors of the several places where they had or should have factories, and it authorized such governors and their council to judge all persons belonging to the said company, or that should live under them, in all causes, whether civil or criminal, according to the laws of the kingdom of England, and to execute judgment accordingly. The English Crown, however, at this time clearly had no jurisdiction over the native subjects of the Mogul, and the charter was admitted by Mr. Melvill (as we understood him) to apply only to the European ser- vants of the company ; at all events it could have no application to the question now under consideration. The English law, civil and crimi- nal, has been usually considered to have been made applicable to natives, within the limits of Calcutta, in the year 1726, by the charter, 13th Geo. I. Neither that nor the subsequent charters expressly de- clare that the English law shall he so applied, but it seems to have 70 ADVOCATE-GENERAL V. EANEE SURNOMOYE DOSSEE. [CHAP. I. been held to be the necessary consequence of the provisions contained in them. But none of these charters contained any forms applicable to the punishment, by forfeiture or otherwise, of the crime of self-murder, and with respect to other offences to which the charters did extend, the application of the Criminal law of England to natives not Chris- tians, to Mohammedans and Hindoos, has been treated as subject to qualifications without which the execution of the law would have been attended with intolerable injustice and cruelty. To apply the law which punishes the marrying a second wife whilst the first is living, to a people amongst whom polygamy is a recognized institution, would have been monstrous, and accordingly it has not been so applied. In like manner, the law, which in England most justly punishes as a heinous offence, the carnal knowledge of a female under ten years of age, cannot with any propriety be applied to a country where puberty commences at a much earlier age, and where females are not un fre- quently married at the age of ten years. Accordingly, in the case referred to in the argument, the law was held not to apply. Is the law of forfeiture for suicide one which can be considered prop- erly applicable to Hindoos and Mohammedans? The grounds on which suicide is treated in England as an offence against the law, and punished by forfeiture of the offender's goods and chattels to the King, are stated more fully in the case of Hales v. Petit, in Plowden's Reports, p. 261, than in any other book which we have met with. It is there stated that it is an offence against nature, against God, and against the King. Against nature, because against the in- stinct of self-preservation ; against God, because against the command- ment, " Thou shalt not kill," and a/elo de se kills his own soul ; against the King, in that thereby he loses a subject. Can these considerations extend to native Indians, not Christians, not recognizing the authority of the Decalogue, and owing at the time when this law is supposed to have been introduced no allegiance to the Kins; of Great Britain ? The nature of the punishment also is very little applicable to such persons. A part of it is, that the body of the offender shall be de- prived of the rites of Christian burial in consecrated ground. The for- feiture extends to chattels real and personal, but not to real estates ; these distinctions, at least in the sense in which they are under stood in England, not being known or intelligible to Hindoos and Mohammedans. Self-destruction, though treated by the law of England as murder, and spoken of in the case to which we have referred in Plowden as the worst of all murders, is really, as it affects society, and in a moral and religious point of view, of a character very different not only from all murders but from all other felonies. These distinctions are pointed SECT. II.] ADVOCATE-GENERAL V. RANEE SURNOMOYE DOSSEE. 71 out with great force and clearness in the notes attached to the Indian code, as originally prepared by Lord Macaulay and the other Commis- sioners. The truth is, that the act is one which in countries not in- fluenced by the doctrines of Christianity has been regarded as deriving its moral character altogether from the circumstances in which it is committed: sometimes as blameable, sometimes as justifiable, some- times as meritorious, or even an act of positive duty. In this light suicide seems to have been viewed by the founders of the Hindoo Code, who condemn it in ordinary cases as forbidden by their religion ; but in others, as in the well-known instances of Suttee and self-immolation under the car of Juggernaut, treat it as an act of great religious merit. We think, therefore, the law under consideration inapplicable to Hindoos, and if it had been introduced b}- the charters in question with respect to Europeans, we should think that Hindoos would have been excepted from its operation. But that it was not so introduced appears to us to be shown by the admirable judgment of Sir Barnes Peacock in this case ; and if it were not so introduced, then as regards natives, it never had an}' existence. It would not necessarily follow that, therefore, it never had existed as regards Europeans. That question would depend upon this, whether, when the original settlers, under the protection of their own Sovereign, were governed by their own laws, those laws included the one now under consideration ; whether an offence of this description was an offence against the King's peace, for which he was entitled to claim forfeiture ; whether the factory could for this purpose be considered as within his jurisdiction. In that case it might be that the subsequent appointment of coroners by the Act of the 33rd Geo. III. would render effectual a right previously existing, but for the recovery of which no adequate remedy had been previously provided. We are not quite sure whether the court below intended to deter- mine this point or not. Much of the reasoning in the judgment is applicable to Europeans as well as to natives, but the Chief Justice in his judgment says : " At present we have merely to consider the ques- tion, so far as it relates to the goods and chattels of a native who wil- fully and intentionally destroys himself, and who cannot in strictness be called afelo de se; and we now proceed to deal with that question, and with that question alone." The point so decided we think perfectly clear, and it is not necessary to go further. Since the new code, which confines the penalty of for- feiture within much narrower limits than existed previously to its enactment, and does not extend it to the property of persons com- mitting suicide, the ease can hardly again arise. We have no doubt that it is our duty in this case humbly to advise Her Majesty to dismiss the appeal, with costs. 72 COMMONWEALTH V. CHAPMAN. [CHAP. I. COMMONWEALTH v. CHAPMAN. Supreme Judicial Court of Massachusetts. 1848. [Reported 13 MetcalJ] 68.] Shaw, C. J. This was an indictment against the defendants for a false and malicious libel, tried before the Court of Common Pleas, and, upon a conviction there, the case is brought before this court, upon an exception which has been most elaborately argued by the learned counsel for the defendants, and which, if sustained, must go to the foundation of the prosecution ; namely, that there is no law of this Commonwealth by which the writing and publishing of a malicious libel can be prosecuted by indictment, and punished as an offence. The proposition struck us with great surprise, as a most startling one ; but as it was seriously presented and earnestly urged in argument, we felt bound to listen, and give it the most careful consideration; but after the fullest deliberation, we are constrained to say, that we can enter- tain no more doubt upon the point than we did when it was first offered. It is true that there is no statute of the Commonwealth declaring the writing or publishing of a written libel, or a malicious libel, by signs and pictures, a punishable offence. But this goes little way towards settling the question. A great part of the municipal law of Massa- chusetts, both civil and criminal, is an unwritten and traditionary law. It has been common to denominate this "the common law of Eng- land," because it is no doubt true that a large portion of it has been derived from the laws of England, either the common law of England, or those English statutes passed before the emigration of our ancestors, and constituting a part of that law, by which, as English subjects, they were governed when they emigrated ; or statutes made afterwards, of a general nature, in amendment or modification of the common law, which were adopted in the colony or province by general consent. In addition to these sources of unwritten law, some usages, growing out of the peculiar situation and exigencies of the eai'lier settlers of Massachusetts, not traceable to any written statute or ordinance, but adopted by general consent, have long had the force of law ; as, for instance, the convenient practice, by which, if a married woman join with her husband in a deed conveying land of which she is seized in her own right, and simply acknowledge it before a magistrate, it shall be valid to pass her land, without the more expensive process of a fine, required by the common law. Indeed, considering all these sources of unwritten and traditionary law, it is now more accurate, instead of the common law of England, which constitutes a part of it, to call it col- lectively the common law of Massachusetts. To a very great extent, the unwritten law constitutes the basis of our jurisprudence, and furnishes the rules by which public and private rights SECT.. II.] COMMONWEALTH V. CHAPMAN. 73 are established and secured, the social relations of all persons regulated, their rights, duties, and obligations determined, and all violations of duty redressed and punished. Without its aid, the written law, em- bracing the constitution and statute laws, would constitute but a lame, partial, and impracticable system. Even in many cases, where statutes have been made in respect to particular subjects, they could not be carried into effect, and must remain a dead letter, without the aid of the common law. In cases of murder and manslaughter, the statute declares the punishment ; but what acts shall constitute murder, what manslaughter, or what justifiable or excusable homicide, are left to be decided by the rules and principles of the common law. So, if an act is made criminal, but no mode of prosecution is directed, or no punishment provided, the common law furnishes its ready aid, pre- scribing the mode of prosecution by indictment, the common law punishment of fine and imprisonment. Indeed, it seems to be too obvious to require argument, that without the common law, our legis- lation and jurisprudence would be impotent, and wholly deficient in completeness and symmetry, as a system of municipal law. It will not be necessary here to consider at large the sources of the unwritten law, its authority as a binding rule, derived from long and general acquiescence, its provisions, limits, qualifications, and excep- tions, as established by well authenticated usage and tradition. It is sufficient to refer to 1 Bl. Com. 63 et seq. If it be asked, k ' How are these customs or maxims, constituting the common law to be known, and by whom is their validity to be deter- mined?" Blackstone furnishes the answer; "by the judges in the several courts of justice. They are the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study," " and from being long personally accustomed to the judicial decisions of their predecessors." 1 Bl. Com. 69. Of course, in coming to any such decision, judges are bound to resort to the best sources of instruction, such as the records of courts of justice, well authenticated histories of trials, and books of reports, digests, and brief statements of such decisions, prepared by suitable persons, and the treatises of sages of the profession, whose works have an established reputation for correctness. That there is such a thing as a common or unwritten law of Massa- chusetts, and that, when it can be authentically established and sus- tained, it is of equal authority and binding force with the statute law, seems not seriously contested in the argument before us. But it is urged that, in the range and scope of this unwritten law, there is no provision which renders the writing or publishing of a malicious libel punishable as a criminal offence. The stress or cne argument of the learned counsel is derived from a supposed qualification of the general proposition in the constitution oi 74 COMMONWEALTH V. CHAPMAN. • [CHAP. I. Massachusetts, usually relied on in proof of the continuance in force of the rules and principles of the common law, as they existed before the adoption of the constitution. The clause is this: Chap. 6, Art. 1, Sect. 6 : " All the laws which have been adopted, used, and approved in the province, colony, or state of Massachusetts Bay and usually prac- tised on in the courts of law, shall still remain and be in full force until altered or repealed by the legislature ; such parts only excepted as are repugnant to the rights and liberties contained in this constitution." It is then argued, that it is in virtue of this clause of the constitu- tion that the common law of England, and all other laws existing before the revolution, remain in force, and that this clause so far modifies the general proposition, that no laws are saved, but those which have been actually applied to cases in judgment in a court of legal proceeding ; and unless it can be shown affirmatively that some judgment has been rendered, at some time before the adoption of the constitution, affirmative of any particular rule or principle of the common law, such rule is not brought within the saving power of this clause, and cannot therefore be shown to exist. We doubt the sound- ness of this proposition, and the correctness of the conclusion drawn from it. We do not accede to the proposition, that the present existence and effect of the whole body of law, which existed before the constitution, depends solely upon this provision of it. We take it to be a well- settled principle, acknowledged by all civilized states governed by law, that by means of a political revolution, by which the political organization is changed, the municipal laws, regulating their social relations, duties, and rights, are not necessarily abrogated. They remain in force, except so far as they are repealed or modified by the new sovereign authority. Indeed, the existence of this body of laws, and the social and personal rights dependent upon them, from 1776, when the Declaration of Independence was made, and our political revolution took place, to 1780, Avhen this constitution was adopted, depend on this principle. The clause in the constitution, therefore, though highly proper and expedient to remove doubts, and give greater assurance to the cautious and timid, was not necessaiy to preserve all prior laws in force, and was rather declarator} 1 of an existing rule, than the enactment of a new one. We think, therefore, it should have such a construction as best to cany into effect the great principle it was intended to establish. But further ; we think the argument is unsound in assuming that no rule of the common law can be established under this clause of the constitution, without showing affirmatively, that in some judicial pro- ceeding, such rule of law lias been drawn in question and affirmed, previous!}' to the adoption of the constitution. During that time there were no published report of judicial proceedings. The records of courts were very imperfectly kept, and afford but little information in SECT. II.] COMMONWEALTH V. CHAPMAN. 75 regard to the rules of law discussed and adopted in them. And who has examined all the records of all the criminal courts of Massachu- setts, and can declare that no records of such prosecutious can be found? But so far as it regards libel, as a criminal offence, we think it does appear, from the very full and careful examination of the late Judge Thacher (Commonwealth v. Whit marsh, Thacher's Crirn. Cases, 441), that man) - prosecutions for libel were instituted in the criminal courts before the Revolution, and none were ever quashed or otherwise disposed of, on the ground that there was no law rendering libels punishable. In the case of the indictments returned against Governor Gage and others, very much against the will of the judges, those indictments were received and filed, and remained, until non prossed by the king's attorney-general. This investigation of the history of the common law of Massachusetts is so thorough, complete, and satisfactory, that it is sufficient to refer to it, as a clear elucidation of the subject. But we think there is another species of evidence to prove the existence of the common law, making libel an offence punishable by law, clear, satisfactory, and decisive ; and that is, these rules of law, with some modification, caused b}* the provisions of the constitution, have been affirmed, declared, and ratified by the judiciary and the legislative departments of the existing government of Massachusetts, by those whose appropriate province and constitutional duty it was to act and decide upon them ; so that they now stand upon a basis of authorit}- which cannot be shaken, and must so stand until altered or modified by the legislature. When our ancestors first settled this countiy, they came here as English subjects ; the}* settled on the land as English territory, con- stituting part of the realm of England, and of course governed by its laws ; they accepted charters from the English government, conferring both political powers and civil privileges ; and they never ceased to acknowledge themselves English subjects, and never ceased to claim the rights and privileges of English subjects, till the Revolution. It is not therefore, perhaps, so accurate to say that they established the laws of England here, as to say, that they were subject to the laws of England. When they left one portion of its territory, the}' were alike subject, on their transit and when they arrived at another portion of the English territory; and therefore always, till the Declaration of Independence, they were governed and protected by the laws of Eng- land, so far as those laws were applicable to their state and condition. Under this category must conic all municipal laws regulating and securing the rights Of real and personal property, of person and per- sonal liberty, of habitation, of reputation and character, and of peace. Tin- laws designed for the protection of reputation and character, and to prevent private quarrels, affrays, and breaches of peace, by punish- ing malicious libel, were as important, and as applicable to the state ami condition of the colonists as the law punishing violations of the 76 FIRST NATIONAL BANK V. KINNER. [CHAP. I. rights of property, of person, or of habitation; that is, as laws for punishing larceny, assault and battery, or burglary. Being part of the common law of England, applicable to the state and condition of the colonists, they necessarily applied to all English subjects and terri- tories, as well in America as in Great Britain, and so continued applic- able till the Declaration of Independence. This, therefore, would be evidence, a priori, that they were in force, and were adopted by the clause cited from the constitution, except so far as modified by the excepting clause. That the law of libel existed, at the first migration of our ancestors, and during the whole period of the colonial and provincial governments, is proved by a series of unquestionable authorities. 1 Exceptions overruled. %b Emerson, J., in First National Bank v. Kinner, 1 Utah, 100 (1873). In American Ins. Co. v. Canter, 1 Pet. oil, the court, by Judge Mar- shall, sa} T , substantially, that the laws of Florida, as they were when the Territor} T was ceded, so far as not inconsistent with the Consti- tution and Laws of the United States, continued in force until altered by the newly created power of the State. (See, also, United States v. Powers, 11 How. 570; Strothers v. Lucas, 12 Pet. 410, 436.) This appears to be the settled doctrine in regard to conquered and ceded Territory in the absence of special treaty stipulation. It applies to territory acquired from Mexico, since the treaty of Guadaloupe made no special provision on the subject. Utah was embraced in that ac- quisition. As in Florida the pre-existing law was Spanish, so in Utah, it was Mexican, and in both cases the laws were derived mainly from the laws of Rome. In neither did the English common law, or the Statute of Frauds, prevail. Congress made no special change, and the Territorial Legislature, upon whom authority was conferred, have made no express enactment upon the subject. This Territoiy was first settled in 1847, and from that time up to the acquisition and treaty in 1848, the settlers were comparatively few in number. There were no settled laws, usages, and customs among them. The}' came here as American citizens, under the flag, and claiming the protection of the United States Government. The particular class of persons forming the great, if not the entire bulk of emigrants, claim to have furnished troops from among their own numbers to assist this Government in its war against Mexico. At the time of the acquisition and treaty, the}- could not claim Mexi- can citizenship, and have never adopted its laws and customs. Soon after the change of sovereignty by the treaty, emigrants in 1 The learned Chief Justice proceeded to show that these authorities had been followed in Massachusetts since the adoption of the constitution. — Ed. SECT. II.] CHAPPELL V. JARDINE. 77 large numbers flocked in from the States and surrounding Territories, and for mans- years there has been an organized community. When we turn to the communities from whence these emigrants pro- ceeded, we find that they differed one from another, more or less, in regard to their laws and institutions. No two are alike. In the most, it is true, many common-law principles and doctrines were in force. Still the body of the common law in each was peculiar to the particular State, and it was rather the common law of the State than the English common law. In some, the English statutes had been received as common law ; in others, not. These diversities make it impossible to assume that any specific body of the common law was transplanted to the Territory'by the fact of immigration. But one course was open, and that was for the whole body of the people to agree, expressly or tacitly, upon a common measure. It was to be expected that the emigrants would not be contented with the loose and alien institutions of an outlying Mexican department, and they have not been. They have tacitly agreed upon maxims and principles of the common law suited to their conditions and consistent with the Constitution and Laws of the United States, and they only wait recognition by the courts to become the common law of the Territory. When so recognized, they are laws as certainly as if expressly adopted by the law-making power. CHAPPELL v. JARDINE. Supreme Court of Errors of Connecticut. 1884. [Reported 51 Connecticut, 64.] Park, C. J. 1 This is a suit for the foreclosure of certain mortgaged premises, constituting an island, known as Ram Island, in Long Island Sound. The complaint alleges that the land mortgaged, at the time the deed was given, lay in the town of Southhold, Suffolk County, in the State of New York, and it is averred that the mortgage was re- corded in the office of the clerk of Suffolk County in that State. It is further alleged that Ram Island, by the recent establishment of the boundary line between the State of New York and this State, has be- come a part of the town of Stonington in this State. The complaint is demurred to, so that the averment stands admitted that the island was, when the mortgage was made, a part of the State of New York. We have heretofore held (Elphick v. Hoffman, 49 Conn. 331) that the boundary agreed upon by the joint commission of the two States and established by the legislative acceptance of both States, was to be regarded as presumably a designation and establishment of the pre- 1 Part of the opinion is omitted. — En. 78 CHAPPELL V. JAEDINE. [CHAP. I. existing boundary line which had become lost, and not as the establish- ment of a new line, leaving the matter open to proof in special cases. If we should apply that rule here, and consider the island in question as having been legally a part of this State when the mortgage was made, we should at once encounter another question of a serious nature. There can be no question that whatever has been the de jure jurisdic- tion over the island, it has been for many years within the de facto jurisdiction of the State of New York; and we should be compelled to determine the legal effect upon this mortgage of that de facto jurisdic- tion. We have thought it as well, therefore, to take the case as the parties have themselves presented it, the plaintiff by the averments of his com- plaint and the defendants by the admissions of their demurrer, and regard the island in question as having been within the State of New York when the mortgage was made, and afterwards brought within vliis State by the establishment of the boundary line. Indeed as the proceeding is in error we cannot properly govern ourselves by anything jut the record as it comes before us. And in treating the island as within the State of New York when the mortgage was made we are regarding the contract and the rights of the parties under it, precisely as they themselves understood them at the time. The mortgaged premises having been in the State of New York when the mortgage was made, it is of course to be governed in its construc- tion and effect by the laws of that State then in force. In McCormick v. Sullivant, 10 Wheat. 192, the court say: "It is an acknowledged principle of law that the title and disposition of real property is exclu- sively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one per- son to another." The same doctrine is held in United States v. Crosby, 7 Cranch, 115, Kerr v. Moon, 9 Wheat. 565, Darby v. Mayer, 10 id. 465, and in man} 7 other cases. Indeed the doctrine is unquestioned law everywhere. Now, according to the laws of the State of New York then and still in force, a mortgage of real estate creates a mere chose in action, a pledge, a security for the debt. It conve3 r s no title to the property. The claim of the mortgagee is a mere chattel interest. He has no right to the possession of the property. The title and seisin remain in the mortgagor, and he can maintain trespass and ejectment against the mortgagee, if he takes possession of the property without the consent of the mortgagor. This appears clearly from the following cases. 1 It follows, therefore, that while the land in question remained in the State of New York, it was incumbered \>y a mortgage of this character ; 1 The learned judge here cited and discussed the following cases : Gardner v. Heartt, 3 Den. 232 ; Power v. Lester, 23 N. Y. 527 ; Trirara v. Marsh, 54 N. Y. 599 ; Jackson v. Willard, 4 Johns. 42 ; Astor v. Hoyt, 5 Wend. 603 ; Kortright v. Cady, 21 N. Y. 343 ; Merritt v. Bartholick, 36 N. Y. 44. — Ed. SECT. II.] CHAPPELL V. JAKDINE. 79 and when it came into this State it bore with it the same burden pre- cisely. There was nothing in the change of jurisdiction that oould affect the contract of mortgage that had been made between the parties. The title to the property continued to remain in the mortgagor, and it remains in him still. This is clear. The laws of this State could not make a new contract for the parties or add to one already made. They had to take the contract as they found it. Now it is clear that there is no remedy by way of foreclosure known to our law which is adapted or appropriate to giving relief on a mort- gage of this character. Our remedy is adapted to a mortgage deed which conveys the title of the property to the mortgagee, and when the law day has passed, the forfeiture, stated in the deed, becomes absolute at law, and vests a full and complete title in the mortgagee, with the exception of the equitable right of redemption, which still remains in the mortgagor. The object of the decree of foreclosure is, to extin- guish this right of redemption if the mortgage debt is not paid by a specified time. The decree acts upon this right only. It conveys nothing to and decrees nothing in the mortgage if the debt is not paid. After the law day has passed the right of redemption becomes a mere cloud on the title the mortgagee then has, and when it is removed his title becomes clear and perfect. Phelps v. Sage, 2 Day, 151 ; Roath v. Smith, 5 Conn. 136; Chamberlin v. Thompson, 10 id. 244; Porter v. Seeley, 13 id. 564; Smith v. Vincent, 12 id. 1; Doton v. Russell, 17 id. 151; Cross v. Robinson, 21 id. 379; Dudley v. Caldwell, 1 ( J id. 218 ; Colwell v. Warner, 3G id. 224. What effect would such a decree produce upon a mortgage like the one under consideration, where the legal title remains in the mortgagor, and nothing but a pledgee's interest is in the mortgagee, even after the debt becomes due? It could only extinguish the right of redemption, if it could do that. It could not give the mortgagee the right of pos- session of the property, for the mortgagor has still the legal title, which carries with it the right of possession. It would require another pro- ceeding in equity, to say the least, to dispossess him of that title, ami vest it in the mortgagee. Hence it is clear that full redress cannot be given the plaintiff in this proceeding. But the plaintiff has a lien on the property in the nature of a pledge to secure payment of the mortgage debt. And although our remedy of strict foreclosure may not be adapted to give redress to the plaintiff through the medium of such a lien, still a court of equity can devise a mode that will be appropriate; for it would be strange if a lawful lien upon property to secure a debt could not be enforced according to its tenor by a court of chancery. It is said that every wrong has its remedy; so it maybe said that every case requiring equitable relief has its corresponding mode of redress. We have no doubt that a court of equity has the power to subject the property in finest ion to the pay- ment of this debt, upon a proper complainl adapted t<> the purpose. When personal property is pledged to secure the payment, of a debt, it 80 MORTIMER V. NEW YORK ELEVATED RAILROAD CO. [CHAP. I. may be taken and sold, that payment may be made, after giving the pledgor a reasonable opportunity for redemption. 80 here, we think a similar course might be taken with this property. Such a course would fall in with the original intent of the parties, and with the civil code and mode of procedure of the State of New York. Modes of redress in that State have of course no force in this State, but such a mode of procedure seems to be adapted to a case of this character. And we further think that on an amended complaint, setting forth all the essential facts, and praying that if there shall be a default in re- deeming the property during such time as the court shall allow for redemption, then the right of redemption shall be forever foreclosed, and the legal title and possession of the property be decreed in the mortgagee, such course might be taken. We think either of the modes suggested might be pursued ; but inas- much as the course which has been taken leaves the legal title and pos- session of the property in the mortgagor, we think the court erred in holding the complaint sufficient, and in passing the decree thereon. There is error in the judgment appealed from, and it is reversed, and the case remanded. In this opinion the other judges concurred. MORTIMER v. NEW YORK ELEVATED RAILROAD CO. Superior Court of the City of New York. 1889. [Reported 6 New York Supplement, 898.] Freedman, J. The claim made in this case by and on behalf of the elevated railway companies is that the absolute fee of the street known as the "Bowery" was, prior to the surrender of the Dutch forces to the English in 1664, in the Dutch government; that such fee thereafter went to the State or to the city of New York so abso- lutely that abutting owners never had, and do not now have, any ease- ment of any kind in said street, and that, the elevated railway running through the Bowery having been constructed with the consent of both the city and the State, neither its owners nor its lessees are liable for any injury inflicted upon abutting property by reason of the construc- tion and operation of the railway. The claim of the English that they were the owners, by right of discovery, under governmental authority, of the land of which the present city of New York forms a part, and that this gave them such exclusive ownership that the Dutch government acquired no title to the land which can be recognized, has been fully set forth in the opin- ion of Judge Truax. I coneur in his remarks as far as they go, but wish to add the following, viz. : — SECT. II.] MORTIMER V. NEW YORK ELEVATED RAILROAD CO. 8l The claim of the English, it is true, has occasionally been criticised on the ground that neither of the Cabots landed in or near New York, or saw the coast of New York. The right of discovery is not recog- nized in the Roman law unless followed by occupation, or unless the intention of the sovereign or State to take possession be declared or made known to the world. And it must be conceded that modern diplomatists and publicists incline to the opinion that mere transient discovery amounts to nothing unless followed in a reasonable time by occupation and settlement, more or less permanent, under the sanction of the State. But the question in the case at bar is not to be decided according to the rules of the international law of the present time. It is a question pureh/ between the public authorities of the State of New York and citizens of the same State, and as such it is controlled by the decisions referred to by Judge Truax, to the effect that what the English did do was sufficient to give them title b}' discovery, and that such title is superior to the Indian title. These decisions proceeded upon the theoiT that the claim of the Dutch was contested by the English from the very start, not because the}' questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title ; and that the claim of the English was finalby decided in their favor by the sword. That being so, it follows that, in contemplation of present law, neither the Dutch nor the Roman law ever prevailed in the State of New York de jure, and that the common law of England must be deemed to be the origi- nal source of all our law. And it further follows that the foundations of the rights of owners of land abutting on a street laid out while the Dutch were in possession, as against the city or the State of New York, rest upon the English common law, and that they are not to be af- fected by the Dutch or Roman law. Reported cases in which the validity of Dutch grants was upheld between individuals have no application to the present controversy. Now, under the English common law, the presumption is that the owners of lands lying on a highway are the owners of the fee of the highway ; that the owners on each side of the highway own the soil of the highway in fee to the centre of the highway ; and that the rights of the public in and to the highway are no higher or other than those of a mere, easement. Wager v. Railroad Co., 25 N. Y. 529. This presumption applies as well to the streets of a city as to a country highway. Rissell v. Railroad Co., 23 N. Y. Gl. This presumption of law is founded on the supposition that the way was originally granted by the adjoining owners in equal proportions. Watrous v. Southworth, 5 Conn. 305. But the presumption may be rebutted by proof to the contrary, and it is rebutted by the production of a deed under which the owner derives title granting the land to tin; side of the street only. Under the operation of this rule, and there being no proof of alienation or escheat requiring a different conclusion, it must be assumed in this case that the original grantors from whom plaintiffs' 82 MORTIMER V. NEW YORK ELEVATED RAILROAD CO. [CHAP. I. title has been derived owned the soil of the Bowery in front of the premises in suit to the centre of the street. But even if the title ot the English rested not in discovery, but in conquest, and the English, upon the surrender b}' the Dutch in 1664, acquired from the Dutch a title to the then existing streets as absolute as under the Roman law the title of the government to a militaiy highway was, the fact would not improve the position of the defendants. Upon receiving such title the English could do with it what they pleased. They were not bound to enforce it against abutting owners, as the Dutch government might have enforced it. The presumption is that they took the title and the streets to be held by them according to their own laws, and as matter of fact the}' thereafter so dealt with said streets as to admit of no other conclusion. The province having been granted by Charles II. to his brother, the Duke of York, by the charter of 1664, several months before the surrender to Sir Richard Nicolls, the grant, in order to remove all doubt as to its validity, was afterwards confirmed by the charter of 1674, also granted to the Duke of York. The object of both charters was to enable the Duke of York to plant a colon}' on this continent. The charter of 1664, issued under the great seal of Eng- land, contained a provision that the statutes, ordinances, etc., to be established by the Duke in the new country, " should not be contrai*}' to, but as nearly as might be agreeable to, the laws, statutes, and government of the realm of England." This charter was, therefore, in itself, an explicit declaration of the King's will that the laws of England should be established in the colony, and that the laws of the Dutch settlers should not be retained. The consequence was that, having obtained the lands, the English held them, not under the Dutch or the civil law, but under the common law of their own coun- try. English law governed English land, so that, even if an absolute title to a street was obtained, the street was ever thereafter treated as an English street, under the common law. 1 1 The learned judge then expressed the opinion that by subsequent acts of the Pro- prietor and of the State the city lost its rights, if any, to the legal fee. In his concurring opinion Truax, J., said : " I am of the opinion that the fee of the Bowery, and of the other streets in the city of New York that are known as Dutch streets, never was in the Dutch government ; and that it was, prior to the Revolution, bound by the rules of the common law, and not by the rules of the Dutch civil law. While the Dutch were in actual possession this execution of the common law was suspended, just as, during the late Rebellion, this execution of the laws of the United States could not be enforced in some of the southern States. But, said the Supreme Court of the United States in Ketchum v. Buckley, 99 U. S. 188, " the same general form of government, the same general law for the administration of justice and the protection of private rights which had existed in the States prior to the Rebellion, re- mained during its continuance and afterwards." See Ketchum v. Buckley, 99 U. S. 188, and cases cited. — Ed. SECT. IL] MoKENNON V. WINN. 8 • i McKENNON v. WINN. Supreme Court of Oklahoma Territory. 1893. [Reported 1 Oklahoma Reports, 327.] Burford, J. 1 The appellant filed his complaint in the court below to enforce the specific performance of a contract for the conveyance of real estate situated in Oklahoma City, Oklahoma County, Oklahoma Territory. A demurrer was filed to the complaint, alleging as grounds : First. That the court has no jurisdiction of the person of defendant, or the subject of the action. Second. That the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, to which the appellant excepted and brings the case to this court by appeal. . . . The second ground for demurrer presents two questions : First. Can a parol contract for the conveyance of real estate, or an interest therein, made after the settlement of this country, and prior to the adoption of our organic act, be enforced? Second. Is a contract for the conveyance of real estate, entered into before title is acquired from the United States, and to be executed after title is acquired, void, as against public policy? The first proposition seems to be settled by the adjudicated cases and text writers in favor of the appellant. kt Every contract, on what- ever subject, may be in oral words, which will have the same effect as if written, except when some positive rule of the common or statutory law has provided otherwise." Bish. Cont. § 153 ; Mallory v. Gillett, 21 N. Y. 412 ; Wyman v. Goodrich, 26 Wis. 21 ; Green v. Brookins, 23 Mich. 48 ; White v. Maynard, 111 Mass. 250. By the common law, prior to the enactment of the statute of frauds (29 Car. II. c. 3, A. I). 1G76), contracts for the sale of real estate, or an interest therein, were not required to be in writing. Bish. Cont. § 1231; 4 Kent Com. p. 450. The English-speaking people brought the common law to America with them, in the first settlement of the colonies ; and it has prevailed in all the States and Territories, modified by legislative acts, local conditions, and such of the English statutes adopted prior to the settlement of our colonies as were of general application, and suited to our conditions, except in some portions where the French or civil law prevailed. At the time of the settlement and discovery of America the statute of frauds had not been adopted, and has only become the law of the United States, or of our several States and Territories, by legislative enactment. This leads us to the inquiry, Did the common law prevail in the Territory in April, 1889? It is contended that prior to the settlement of Oklahoma, and until the same was superseded by statutory laws, 1 Part of the opinion La omitted. — En. 84 McKINNON V. WINN. [CHAP. I. the Code Napoleon, or civil law, prevailed. Whatever may have been the laws of the country now known as Oklahoma, they ceased to operate in the region originally comprising the Indian Territory when the Territory ceased to be a part of the Territory of Louisi- ana, and the laws of the Territory of Indiana and the Territory of Missouri, which may have once prevailed in said region, became inoperative in and ceased to have any force or effect in the Indian Territory, when that Territory ceased to be a part of said Territories. Railroad Co. v. O'Loughlin, 49 Fed. Rep. 440. There was no law in the Indian Territory regulating the making of contracts at the time of the approval of the Act of Congress establishing a United States dis- trict court in said Territory by the act of March 1, 1889. 25 Stat. 783. Congress, with the assent of the Indians, created the court for the whole of the Indian Territory, which included Oklahoma, and con- ferred on it jurisdiction in all civil cases between citizens of the United States who are residents of the Territor}', or between citizens of the United States or of any State or Territory, and any citizen of, or person residing or found in, the Indian Territory. It gave the court author- ity, and imposed upon it the duty, to apply the established rules and principles of the common law to the adjudication of those cases of which it was given jurisdiction. Pyeatt v. Powell, 51 Fed. Rep. 551. But if it be held that the establishment of a United States court in the Indian Territory did not put the common law in force in said Territory, except in so far as was necessary to execute the powers of said court, and for the adjudication of such cases as actually went into that forum, then there was no law in Oklahoma, at the date of its settlement, regulating the making of contracts. If this should be conceded, then it necessarily follows, on principle, that when people from all parts of the United States, on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns, and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma, with them, the established principles and rules of the common law, as recognized and promulgated by the American courts, and as it existed when imported into this country by our early settlers, and unmodified by American or English statutes. So that, in any event, the common law prevailed in Oklahoma at the time the con- tract between the appellant and appellee was entered into ; and as, at common law, contracts for the sale and conveyance of real estate were not required to be in writing, the contract mentioned in the complaint may be enforced, unless void for other reasons. 1 1 The contract was held not to be void on the ground alleged: the court followed his point Lamb v. Davenport, 18 Wall. 307. — Ed. on this t SECT. III.] SELIM FARAG V. DAME ROSINA MARDROUS BT AL. 85 SECTION III. CONCURRENT LEGISLATIVE JURISDICTION. MATTHEWS v. BURDETT. Queen's Bench. 1703. [Reported 2 Salkeld, 412.] In the primitive church, the laity were present at all synods. When the empire became Christian, no canon was made without the Emperor's consent; the Emperor's consent included that of the people, he having in himself the whole legislative power, which our kings have not. Therefore, if the King and clergy make a canon it binds the clergy in re ecclesiastica, but it does not bind laymen : they are not represented in Convocation ; their consent is neither asked nor given. 1 SELIM FARAG v. DAME ROSINA MARDROUS ET AL. Court of Appeal of Alexandria (Egyptian Mixed Court). 1894. 19 Juris, des Trib. de la Reforme, 231. The Armenian Catholic Patriarch of Constantinople on August 23, 1886, and on November 18, 1887 pronounced a judicial .separation between Selim Farag and his wife, and condemned him to pay her 33,000 francs damages and 300 francs a month alimony. One Back, a creditor of Mrs. Farag, made a judicial seizure of the sum thus due from Selim Farag. On January 20, 1891, after due notice, Selim Farag appealed from the decision of the Patriarch to the Holy See ; and the Congregation de propaganda jide, to which the matter was referred, by a decision of June 27, 1892 (approved by the Pope the same day), reversed both sentences of the Patriarch. 2 The Court. It will not be seriously questioned that if, as a result of the decision of the Holy Court of Rome, the sentences of the Patri- arch have been math; void, all the rights which Mrs. Farag or those claiming under her asserted as a result of the sentences also became void: since the original title on which they were based has become null and without effect. The fundamental questions are therefore whether the IIolv See exceeded the limits of its jurisdiction, and whether its decisions have binding force in Turkey. 1 See 21 E. 4. 44. pi. 6.— Ed. 2 This short statement of facts haa been slightly altered in form from the statement of the court. Part of the opinion, npnn a point of procedure, has heen omitted. — Ki> 86 SELIM FARAG V. DAME EOSINA MARDROUS ET AJ^. [CHAI\ I. On the first point, the Pope is the head of the Catholic Church. His jurisdiction extends directly over all bishops for the maintenance of the unity of the faith and the discipline ; he is, as the Council of the Vati- can proclaims, the Supreme judge of the faithful. They may appeal to him in all cases which are within the ecclesiastical jurisdiction ; his sovereign power extends over the churches of the Orient as well as over all other churches in the whole world. By a recent bull of July 20, 1883, addressed to the Patriarchs, Archbishops, and Bishops of the Oriental rites, the Congregation de propaganda fide has reminded them of this fundamental rule of jurisdiction, especially with regard to matrimonial causes: "To harmonize the rigorous observance of the Canon Law in this very important matter with the special conditions of the Ficclesiastical Courts of the Orient, appeals ought to be taken in the following order: if the first judgment has been given in the Dioce- san Court, appeal shall be taken to the Patriarchal Court; and if judg ment is given in the Patriarchal Court, appeal shall be taken to the Holy See." (Chap. IV., § 24). As to the Armenian Catholic Patriarch of Constantinople, in particular, before he was proclaimed in the Con- sistory of August 4, 1881, Patriarch of Cilicia under the name of Peter IV., Mgr. Stephen Azarian had addressed to His Holiness Leo XIII. the profession of faith and obedience to the Holy See, which he had pronounced before the Synod in the form prescribed by Urban VIII., and submitted himself to the authorit}- of the Roman Church in all things touching the faith, the discipline, and the administration of his patriarchate. There is no doubt, therefore, that in granting the appeal of Selim Farag against the decisions of the Patriarch, and in setting them aside, the Hoby See has acted within the bounds of its jurisdiction and its powers. On the second point, far from disowning the authority and the right of jurisdiction of the heads of religious communities established in the Orient, the Sublime Porte has for a long time granted to these com- munities the most absolute right of conforming to the rules and rites of their religion. In such a spirit were promulgated the Hatti Humayoum on February 18, 1856, the organic rule of the Supreme Court of Con- stantinople on 8 Zilhedje, 1284, and the law of the Vilayets in 1867. The idea and intention of the Sublime Porte are made still clearer by its spontaneous declaration in the Treat}' of Berlin on July 13, 1878 ; in which it is said that " the Sublime Porte having expressed the wish to maintain the principle of religious liberty and give it the widest ex- tension," it has been stipulated that " the liberty and the open practice of all cults are assured to every one, and no hindrance shall be placed in the way either of the hierarchical organization of the different com- munions or of their relations to their spiritual heads." The Berat of the Sultan, dated 21 Gamad Akher, 1303, accrediting the Patriarch Azarian after the confirmation of his election by the Holy See, inspired by the same principles, expressly imposes upon the Patri- arch respect and observance of the laws of his church, orders that the SECT. III.] PAPAYANNI V. RUSSIAN STEAM NAVIGATION CO. 87 Christians of his communion shall be judged in accordance with the rules ot their rite and the laws of their religion, and makes the ob- servance and respect of these laws by the Patriarch the condition of his continuance during his life. The constant practice of the Catholic Patriarchates of the Orient, Syriac, Chaldee, Copt, Maronite, Armenian, and Latin, has certainly been to render legal decisions in the name of the Pope, and to take appeals to him, without any opposition on the part of the local authorities or of the Sublime Porte. It is only neces- sary to read the circulars of February 3 and April 1, 1891, to be con- vinced that the Sublime Porte, in decreeing that in future the decisions of the Patriarchates should be executed like the other judgments of the country, without any foreign intervention, had no other aim than to put such decisions beyond the reach of objections brought by the defend- ants before the local courts charged with the execution of judgments, and to give the Patriarch alone jurisdiction to pass upon the objections. One might therefore rely upon these circulars to establish the doctrine that the Patriarch's decisions are in future sovereign, and beyond all appeal except to the superior jurisdiction of the Holy See. The decision of the Holy See, which has set aside the two sentences of the Armenian Catholic Patriarch of Constantinople, has in Turkey therefore, the authorit}' of a sovereign judgment, and had the immedi- ate effect of quite avoiding the two sentences. Back and the heirs of Mardrous cannot in addition invoke the authority of the judgment of this court, January 29, 1891, and the Court of Cairo, January 28, 1892, which declared regular and valid the suits against Farag by virtue, and in execution of the Patriarchal sentences ; for these judgments were given before the Papal decision, which in setting aside the Patriarchal sentences has at the same time as necessary consequence avoided all the effects of the supposed res judicata. It is in fact a principle of the Courts of the Reform that the setting aside or reversal of a judgment; in any legal way caused the avoidance of the execution and of all de- cisions based on the judgment ; cessante causa, cessat effectus. PAPAYANNI v. RUSSIAN STEAM NAVIGATION CO. .Judicial Committee of the Privy Council. 18G3. [Reported - Moure's Privy Council Cases, New Series, 161.] Tins was an appeal from two judgments in an action and cross- action, being a claim ami counter-claim, respecting damage by collision off the Island of Marmora, whereby the steamer "Colchide" was lost, pronounced by the Judge of the Supreme Consular Court at Constantinople. The appellants were British subjects domiciled in England, and owners of the "Laconia." The respondents were Rus- sian subjects, "The Russian Steam Navigation and Trading Company,** a public company, incorporated by an Imperial ukase of His Majesty 88 PAPAYANNI V. RUSSIAN STEAM NAVIGATION CO. [CHAP. i. the Emperor of Russia, and were the owners of the steamship " Col- chide." . . . The appellants entered a protest against the jurisdiction of the Supreme Consular Court to entertain the cause of collision, it being a proceeding in rem. 1 Their Lordships' judgment was pronounced by Dr. Lushington. In considering what power and what jurisdiction was conceded to Great Britain within certain portions of the Turkish dominions, it must alwa}s be borne in mind that in almost all trans- actions, whether political or mercantile, a wide difference subsists in the dealings between an Oriental and a Christian State and the inter- course between two Christian nations. This is an undoubted fact. Many of the reasons are obvious, but this is not the occasion for discussing them. It is sufficient for us to know and acknowledge that such is the fact. It is true beyond all doubt that, as a matter of right, no State can claim jurisdiction of any kind within the territorial limits of another independent State. It is also true that between two Christian States all claims for jurisdiction of an}* kind, or exemption from jurisdiction, must be founded on treaty, or engagements of similar validity. Such, indeed, were factory establishments for the benefit of trade. But though, according to the laws and usages of European nations, a cession of jurisdiction to the subjects of one State within the territory of another, would require, generally at least, the sanction of a treaty, it may by no means follow that the same strict forms, the same pre- cision of treaty obligation, would be required or found in intercourse with the Ottoman Porte. It is true, as we have said, that if you inquire as to the existence of any particular privileges conceded to one State in the dominions of another, you would, amongst European nations, look to the subsisting treaties ; but this mode of incurring obligations, or of investigating what has been conceded, is matter of custom and not of natural justice. Any mode of proof by which it is shown that a privilege is conceded is, according to the principles of natural justice, sufficient for the pur- pose. The formality of a treaty is the best proof of the consent and acquiescence of parties, but it is not the only proof, nor does it exclude other proof; and more especially in transactions with Oriental States. Consent ma\' be expressed in various ways : by constant usage permitted and acquiesced in bj' the authorities of the State, active assent, or silent acquiescence, where there must be full knowledge. We, having considered the materials before us, entertain no doubt that, so far as relates to the Ottoman Government, no objection is tenable against the exercise of jurisdiction between British and Rus- sian subjects. Indeed, the objection, if any such could properly be urged, should come from the Ottoman Government rather than a 1 The remainder of the statement of facts, the arguments of counsel, and part of the opinion are omitted. — Ed. SECT. III.] IN RE ROSS. 89 British suitor, who, in this case, is bound by the law established by his own country. The case may, in some degree, be assimilated to the violation of neutral territory by a belligerent ; the neutral State alone can complain. We think, looking at the whole of this case, that so far as the Ottoman Government is concerned, it is sufficiently shown that they have acquiesced in allowing to the British Government a jurisdiction, whatsoever be its peculiar kind, between British subjects and the subjects of other Christian States. It appears to us that the course was this : that at first, from the total difference of religious habits and feelings, it was necessary to withdraw as far as practicable British subjects from the native courts ; then in the progress of time commerce increasing, and various nations having the same inter- est in abstaining from resort to the tribunals of Mussulmans, etc., recourse was had to Consular Courts ; and by degrees the system be- came general. Of all this the Government of the Ottoman Porte must have been cognizant, and their long acquiescence proves consent. The principles are fully explained in the celebrated judgment of Lord Stowell in the case of "The Indian Chief" (3 C. Rob. 28), to which we have very recently referred (Advocate-General of Bengal v. Ranee Surnomoye Dossee, 2 Moo. P. C. 22, 60). Though the Ottoman Porte could give and has given to the Christian Powers of Europe authority to administer justice to their own subjects, according to their own laws, it neither has professed to give nor could give to one such Power any jurisdiction over the subjects of another Power. But it has left those Powers at liberty to deal with each other as they may think fit, and if the subjects of one country desire to resort to the tribunals of another, there can be no objection to their doing so with the consent of their own Sovereign and that of the Sove- reign to whose tribunals they resort. There is no compulsory power in an English Court in Turkey over any but English subjects ; but a Russian or any other foreigner may, if he pleases, voluntarily resort to it with the consent of his Sovereign, and thereby submit himself to its jurisdiction. In re ROSS. Supreme Court of The United States. 1890. [Reported 140 United States Reports, 453.] The petitioner below, the appellant here, was imprisoned in the penitentiary at Albany in the State of New York. He was convicted on the 20th of May, 1880, in the American consular tribunal in Japan, of the crime of murder, committed on board of an American ship in the harbor of Yokohama in that empire, and sentenced to death. On the 6th of August following, his sentence was commuted by the President to imprisonment for life in the penitentiary at Albany, and 90 IN RE ROSS. [CHAP. I to that place he was taken, and there he has ever since been confined. Nearly ten years afterwards, on the 19th of March, 1890, he applied to the Circuit Court of the United States for the Northern District of New York for a writ of habeas corpus for his discharge, alleging that his conviction, sentence, and imprisonment were unlawful, and stating the causes thereof and the attendant circumstances. The writ was issued, directed to the superintendent of the penitentiary, who made return that he held the petitioner under the warrant of the Presi- dent. . . . Field, J. 1 The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdic- tion over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protect- ing their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. During those ages these commer- cial magistrates, generally designated as consuls, possessed to some extent a representative character, sometimes discharging judicial and diplomatic functions. In other than Christian countries they were, by treat}' stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offences. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rides of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people. The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other coun- tries by its officers appointed to reside therein. We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out, contending that, so far as crimes of a felonious character are concerned, the same protection and guarantee against an 1 Part of the opinion only is given. ■ — Ed. SECT. III.l IN RE ROSS. 91 undue accusation or an unfair trial, secured by the Constitution to citi- zens of the United States at home, should be enjoyed b\ r them abroad. In none of the laws which have been passed by Congress to give effect to treaties of the kind has there been any attempt to require indictment by a grand jury before one can be called upon to answer for a public offence of that grade committed in those countries, or to secure a jury on the trial of the offence. Yet the laws on that subject have been passed without objection to their constitutionality. Indeed, objection on that ground was never raised in any quarter, so far as we are in- formed, until a recent period. It is now, however, earnestly pressed by counsel for the petitioner, but we do not think it tenable. B\' the Constitution a government is ordained and established " for the United States of America," and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or pre- sentment b}' a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad. Cook v. United States, 138 U. S. 157, 181. The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for manj T purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passen- gers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. And, besides, their enforcement abroad in numerous places, where it would be highly important to have consuls invested with judicial au- thority, would be impracticable from the impossibility of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could he accused and tried. They must have known that such a requirement would de- feat the main purpose- of investing the consul with judicial authority. While, therefore, in one aspeel the American accused of crime com- mitted in those countries is deprived of the guarantees of the Constitu- tion against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tri 92 FICHERA V. DE STRENS. [CHAP. I. bunals, often arbitrary ana oppressive, ana sometimes accompanied with extreme cruelty and torture. Letter of Mr. Gushing to Mr. Calhoun of September 29, 1844, accompanying President's message communicating abstract of treaty with China, Senate Doc. 58, 28th Cong. 2d Sess. ; Letter on Judicial Exterritorial Rights by Secretary Frelinghuysen to Chairman of Senate Committee on Foreign Relations of April 29, 1882, Senate Doc. 89, 47th Cong. 1st Sess. ; Phillimore on Int. Law, vol. 2, part 7 ; Halleck on Int. Law, c. 41. . . . FICHERA v. DE STRENS. Belgian Consular Court, Cairo. 1887. [Reported 16 Clunct, 141.] The Court. The Constitution of February 7, 1831, cannot guaran- tee to Belgian citizens the enjoyment of their constitutional rights outside the limits of the national territory. It cannot have the effect of granting liberty of worship, of the press, of speech, and of assem- blage in countries which cannot tolerate such liberty. Therefore, the special measures of protection which are the corollary of it, like trial by jury in crimes concerning the press, cannot be invoked in the case of acts committed in a foreign countiy. One cannot reby upon the fiction of exterritoriality to argue that the crime imputed to the accused should be considered as having been committed in Belgium ; for this fiction cannot be pressed beyond its object, which is, in penal matters, as much to secure the repression of crimes committed by Belgians in a country outside Christendom as to protect them from vexatious prosecutions b} T foreign governments. The theory of incompetence set up by the accused would, on the con- trary, render the repression of crimes of the press illusory and impos- sible ; for to deal justby with such an affair it is necessary to take account of the personality of the parties to the cause and of the polemical habits of the local press, things which cannot be wisely ' appreciated by judges who are entire strangers to the place where the alleged libels were published. . . - 1 On principle, citizens of a country residing abroad, whatever may be their political and constitutional rights elsewhere, are subject to the criminal laws of the foreign country where they live. There is, it is true, an exception when countries outside Christendom are concerned, but this exception results, not from the Constitution, but from the diplomatic conventions and the special laws which exclusiveby govern it. So far as concerns Belgian citizens, this special law is the consular law of December 31, 1851 ; by the terms of Art. 27 of this law, the Consular Court has cognizance of all crimes committed within 1 The court here held that no Belgian court had jurisdiction. — Ed. SECT. III.] ROUET V. SCHIFF. 93 the limits of the consulate. It makes no distinction between ordinary crimes and crimes of the press ; no mention at all is made of a special procedure for crimes of this sort. The plea to the jurisdiction is overruled. ROUET v. SCHIFF. Court of Cassation, France. 1891. [Reported Journal du Palais, 1891, 721.] M. Rouet, a French banker at Constantinople, engaged in a series of operations on the Bourse with MM. Schiff & Co., English subjects. The operations resulted in 1885 in a balance of £1400, for which Rouet, on Ma}- 11, 1885, signed two promissory notes to the order of Schiff & Co. These bills having been protested at maturity, MM. Schiff brought suit against their debtor, who set up in defence that the transaction was void for gaming. To meet this defence, MM. Schiff invoked the law of March 25, 1885. But Rouet replied that this law had no retroactive effect, and that on the dav of signing the notes it had not yet gone into effect in Constantinople. By judgment of June 25, 1886, the Consular Court of Constanti- nople, in which the suit was brought, decided in favor of Schiff & Co. as follows : — "As to the obligatory force at Constantinople of the law of March 28-April 8, 1885 ; our legislation has not made special provisions for the promulgation of law in the Levant, and the presumption of Article 1 of the Civil Code 1 ceases at the frontiers of the fatherland, and cannot be extended to Frenchmen residing abroad. The consular tribunals ought, by analogy with our laws in force, while protecting private interests, to conform to established rules in asserting the au- thority of laws. There are two systems possible, that of Article 73 of the Code of Procedure, which grants a delay of two months as legally necessary for knowledge of a legal process to be presumed to have reached the interested party, and that of the Decree of 5-1 1 November, 1870. Article 73, Co. Proc, had quite another object than that of a legislator in determining when a new law shall become obligatory; it granted a long delay in order to permit a Frenchman in a foreign land to prepare a method of defence and to provide at leisure for the for- malities of a lawsuit; but the same considerations do not exist in a matter of promulgating law, where the object is to give notice of the legislative will. The consular tribunals ought, therefore, to follow the rule laid down in the decree of 5-11 November, 1870. " By virtue of this decree, the promulgation of laws results from 1 " Laws . . . shall be executed in every part of tin- Republic from the moment when their promulgation can he known there." 94 KOUET V. SGHIFF. [CHAP. I. their insertion in the Journal officiel. Laws are obligatory in Paris a full day after the promulgation ; and everywhere else a full day after the Journal officiel containing them arrives at the capital city of the county. The law as to sales for future delivery was promulgated in the Journal officiel on April 8, 1885, and the Journal officiel reached Constantinople on the 18th of the same month ; the new law therefore came in force there the 18th of April. The notes in question were signed the following 11th of May; consequently the new law was at that date promulgated and binding on all. This law grants an action to the creditor on a gaming debt, and therefore the defence set up by Rouet should be rejected. " For these reasons : — overrules Rouet's plea ; adjudges him to pay Schiff & Co. the sum of £1400, due on two notes of £700 each, with legal interest, etc." M. Rouet appealed, but on April 21, 1887, the Court of Appeal of Aix affirmed the decision of the lower court. Error was brought b\ - M. Rouet for violation of Art. 1 of the Civil Code and for misapplication of the decree of Nov. 5, 1870, and of the principles governing the promulgation and publication of laws •, in that the judgment had declared applicable ipso jure to Frenchmen residing abroad a law which had not been published there, on the er- roneous ground that the provisions of said decree were not relative solely to the publication of laws in France. Judgment. The Court. As to the only error alleged : Article 1 of the Civil Code and Article 1 of the decree of Nov. 5, 1870, apply exclusively to the execution and to the publication of laws in French territory ; they cannot be applied to govern the case where the question to be determined is, when a law promulgated and pub- lished in France should be presumed to be known by French citizens residing abroad. In the silence of the law in this respect, it is the duty of the courts to determine this question according to the circum- stances of the case, especially by taking account of the da}' of arrival of the Journal officiel in the place where the act in question took place. In the exercise of this duty, the Court of Aix has found that the Journal officiel containing the law of March 28, 1885, promulgated the following 8th of April, reached Constantinople April 18, 1885, and that the notes in question were signed May 11 following. From these facts the judgment attacked, whatever other grounds it was rested upon, might properly have been rested on this conclusion, that the law of March 28, 1885, was known to the maker of the notes when he signed them, and was therefore obligatory on him. Application dismissed. SECT. III.] SWIFT V, TYSON. 05 SWIFT v. TYSON. Supreme Court of the United States. 1S42. [Reported 16 Peters' Reports, 1.] Mr. Justice Story delivered the opinion of the court. 1 This cause conies before us from the Circuit Court of the Southern District of New York, upon a certificate of division of the judges ot that court. The action was brought by the plaintiff, Swift, as endorsee, against the defendant, Tyson, as acceptor, upon a bill of exchange dated at Portland, Maine, on the first day of May, 1836, for the sum of one thousand five hundred and forty dollars, thirty cents, payable six months after date and grace, drawn by one Nathaniel Norton and one Jairus S. Keith upon and accepted by Tyson, at the city of New York, in favor of the order of Nathaniel Norton, and by Norton endorsed to the plaintiff. The bill was dishonored at maturity. . . . In the present case, the plaintiff is a bona fide holder (without notice) for what the law deems a good and valid consideration, that is, for a pre-existing debt ; and the only real question in the cause is, whether, under the circumstances of the present case, such a pre-exist- ing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, under the circum- stances of the present case, for the acceptance having been made in New York, the argument on behalf of the defendant is, that the con- tract is to be treated as a New York contract, and therefore to be gov- erned by the laws of New York, as expounded by its courts, as well upon general principles as by the express provisions of the thirty- fourth section of the Judiciary Act of 1789, ch. 20. And then it is further contended, that by the law of New York, as thus expounded by its courts, a pre-existing debt does not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable in- struments. . . . To say the least of it, it admits of serious doubt, whether any doc- trine upon this question can at the present time be treated as finally established ; and it is certain that the Court of Errors have not pro- nounced any positive opinion upon it. But, admitting: the doctrine to be fullv settled in New York, it remains to be considered whether it is obligatory upon this court, if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their deci- sions upon this point upon any local statute, or positive, fixed, or ancient local usage: but they deduce the doctrine from the general principles of commercial law. It is, however, contended, that the thirty-fourth section of the Judiciary Act of 1 78!), ch. 20, furnishes a rule 1 Part of tlic opinion is omitted. — Ed. 96 SWIFT V. TYSON. [ CHAP. I. obligatory upon this court to follow the decisions of the State tribunals in all cases to which they apply. That section provides '- that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." In order to main- tain the argument, it is essential, therefore, to hold, that the word " laws," in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinarv use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are ; and are not of themselves laws. They are often re-examined, reversed, and quali- fied by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a State are more usually understood to mean the rules and enactments promul- gated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases which have hitherto come before us for decision, this court have uniformly sup- posed that the true interpretation of the thirty-fourth section limited its application to State laws strictly local, that is to sa}', to the positive statutes of the State, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial Jaw to govern the case. And we have not now the slightest difficulty in hold ing, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but the}* cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted b} r Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be in a great measure, not the law of a single country only, but of the SECT. III.] MURRAY V. CHICAGO immediate recourse against the drawer, notwithstanding a statute of the State forbidding suit to lie brought in such a case until maturity of the bill. Watson v. Tarpley, 18 How. "»17. It is insisted that these and other cases show the existence of some general law, separate from and independ- ent of the law of the land prescribed by the States. This does not, in my opinion, follow. Indeed, it could not follow without intro- ducing into the jurisprudence <»f this country the anomaly of the existence of two laws over the same territory, and upon the same subject-matter, enforceable, respectively, according to the accidents of the residence of the parties between whom the differences arise 122 SWIFT V. PHILADELPHIA & READING RAILROAD CO. j_CIiAr. i. Suppose, in the Ohio case, that two firemen had been on the engine with the engineer, and both had been injured through his negligence; one of the firemen living in the State of the defendant, and the other living in another State. To each of the injured the locus is iden- tical; the negligence is identical. Is it possible that the accidental difference of residence brings into play a difference of law affecting their rights so radically? Is the obligation of the railroad upon the soil of Ohio, under circumstances identical, different to the Ohioan from what it is to the Kentuckian? The Supreme Court could not have so held. In the case cited the federal court administered, not the law of the United States, but the law of Ohio. The differeuce between its holdings and those of the courts of Ohio was not due to a difference of law, but to a different interpretation of the law. In all cases to which the jurisdiction of the federal court is extended, its duty is, not only to ascertain the facts, but to interpret the law applicable thereto, as well. The law is the same law interpreted by the State courts, but the interpretations are not necessarily the same. The decisions of the State court are not necessarily the law, but only mirrors of the law. They may be mistaken interpretations, and therefore incorrect mirrors. The litigant in the federal court is entitled to the law as it is, not simply to the local judicial reflection of the law. What the Supreme Court in effect said in that case was, not that the law applicable to the case before it was different from the law applicable to any like case arising in Ohio, but, that the decisions of the State courts had not accurately evidenced the law, and were therefore not to be followed. The same observation applies to the Mississippi case. The gen- eral commercial law in force in Mississippi, as well as in other States of the Union, gave the payee of a bill immediate recourse upon the drawer, upon the refusal of the drawee to accept. The statute of the State, however, forbade suit to be brought until after the maturity of the bill. The question was whether a litigant seek- ing recovery through the federal courts, before maturity, was barred by this statute. Undoubtedly, the State had the right to modify the commercial law that should prevail within its boundaries. But the statute in question created no change in substance of the commercial law, but only in the remedy that the parties should enjoy. It was purely remedial, and not substantive, and, so far as it was remedial was not necessarily binding upon the federal court. The federal court sat in Mississippi to enforce the commercial law applicable to the given case, and as such was an independent tribunal, to be governed, as to its remedial rules, by the procedure to be found in the common law, the acts of Congress, and the policy of the State, so far as such was found just ami applicable. Whether the prohibi- tion of this remedial statute should be applied to a suitor in the federal tribunal was to be determined by itself, upon considerations of justice, and did not mandatorilv follow the enactment of the local statute. SECT. III.] SWIFT V. PHILADELPHIA & READING RAILROAD CO. 123 That the federal courts enforce, not a general law of the United States, but the law of the particular States applicable to the contro- versy, is demonstrated by an illustration arising every day. At common law, neither the heirs nor administrators could recover dam- ages for the death of the decedent, though caused by negligence. There has been no act of Congress changing this rule. In most of the States, however, the common law, in this respect, has been modified by permitting a recovery in such cases to a given amount. The federal courts are every day made the scene of such suits. Are the judgments granted therein in pursuance of any common law of the United States? Manifestly, not; for in the common law, unmodi- fied, there can be found no warrant for such suits. The actions, though in the federal court, are based, as in the State court, upon rules of civil conduct prescribed by the State through its adopted common law, with the modifications thereof prescribed by the State. I can conceive that it may be said that though, in the illustration given, the federal courts enforce State law, it would not follow that, in actions arising from matters within the field of the nation's powers, the federal court may not find a United States common law to enforce. I am not considering that distinction, but am treating of cases which are urged wholly irrespective of such distinction. Neither the Ohio nor the Mississippi case cited, nor any of those to which my attention has been called in that connection, involved sub- jects within the field of the nation's power. The Ohio case arises from the law of negligence, — a purely police, and therefore local, regulation, — and the Mississippi case does not disclose any element of interstate commerce or other national power. Indeed if the deci- sions cited established the existence of a United States common law or general law over the subject-matters involved, it would follow that the line of demarkation between State and national fields of povier had nothing to do with the solution. But it is urged that the Reports abound with cases in which the federal courts, in construing ordinances and statutes, and otherwise ascertaining the rights of parties, resort for light to the common law. It could not be otherwise. The common law is the bock- ground against which the outlines of our institutions are drawn, and the foundation upon which the transactions of our race arc builded. It is as essential to interpretation as light is to the operations of the microscope. But it is not thereby made the law of the land. Mechanics and medicine are likewise essential to interpretation. Only by looking into their fields can courts accurately ascertain the meaning of many transactions or statutes. They are the settings of transactions and statutes, but do no1 by reason of that become a part of the law of the land. The law of the land is a rule of civil con- duct prescribed by the supreme power in the State. An appeal i<» the common law for lighl is entirely distinct from a search of the law of the land for ihc evidence of a command. 124 SWIFT V. PHILADELPHIA & HEADING RAILROAD CO. [CHAP. I, But, it is asked, what law prevails in the Territories and the Dis- trict of Columbia? The Constitution itself answers. Upon Con- gress is conferred (art. 1, sect. 8) the right "to exercise exclusive legislation" over the District of Columbia, and all places purchased for the erection of forts, arsenals, etc., and (art. 4, sect. 3) to "make all needful rules and regulations respecting the territory of the United States." Over the area covered by the Territories aud the District of Columbia, therefore, there is but one sovereign. The territorial governments are simply the agencies of the nation, and are, in this respect, different from the States. But, as I have pointed out, there is a law of the land attached to every inch of our soil. It is, in some cases, the common law; in others, the civil law, — dependent chiefly upon the character of the earlier dominion extended over it. Now there being but one sovereign, — the nation, — the common law or the civil law, as the case may be, is necessarily attributable to it, as the only supreme power in the State. Here the nation has succeeded to the earlier sovereignties which prescribed the common or civil law as the law of the land. There is, therefore, a common or civil law of the United States over those areas not yet taken into the boundaries of the States. But there is no inconsistency between this and the position here- inbefore taken. Each inch of soil necessarily has its law of the land, but, in the areas in which the nation and State are coterritorial, the sovereignty to which all law is attributable, except such as is found in the Constitution of the United States and the laws in pur- suance thereof, and the treaties, is that of the State. There the common law is not attributable to the United States as sovereign, because neither the Constitution, nor laws of the United States in pursuance thereof, have so adopted it. The distinction, though it might theoretically and speculatively be otherwise, is actual, as shown by the intendments of the Constitution and the doctrine of concurrent jurisdiction already pointed out, and it is only with actualities that the court can deal. It is also asked, what law is in force upon the navigable waters of the United States, unless there be a general law of the United States? The answer is again found in the Constitution (art. 3, sect. 2), which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. This is an express bestowal, in the fundamental law of the land, of all maritime power and authority, upon one of the departments of the nation. The bestowal is as broad and as exclusive as the power to declare war. It necessarily carries with it the code of rules applicable to maritime jurisdiction. That code is specifically a national code. It is neither common law nor general law. It is, in the language of Justice Bradley, in The Lottawanna, 21 Wall. 558, "like international laws, or the laws of war which have the effect of law in any country no further than they are accepted and received as such." The clause is SECT. III.] SWIFT 17. PHILADELPHIA A- READING RAILROAD CO. 12"' simply the bestowal upon the nation of a purely national power, self- enforcing by the employment of such rules as the nation alone may prescribe. But beyond this special jurisdiction, carved out of the general jurisdiction, and, for national purposes, bestowed exclu- sively upon the national government, the laws of the States within whose territories the navigable waters lie are still in force, subject to the exigencies and necessities of the maritime power. The terri- tory covered by the navigable waters is under the law of the land which the proper State may prescribe. The existence, therefore, of this power in the nation, adds nothing to the proposition that there is a United States common law of the land. But it is said that, if there is no United States common law apply- ing to the field of interstate commerce, there could have been, until the enactment of the Interstate Commerce Act, no law in that field whatever. And it is inferred from this that common carriers within that field, until the enactment of the Interstate Commerce Act, could not have been liable for refusing to receive goods or passengers, or delaying their arrival, or for other like wrongs or delinquencies. It is never safe to argue the existence of a law from the necessities that ought to give rise to it. The sovereign power does not always meet even the apparent needs. And, if law were always to be inferred where needs were found, I fear a diversity as wide a8 the personal predilections of the judges would be introduced. But the gaping vacuum upon which the argument is predicated does not in fact exist. The power of the nation over interstate commerce is exclu- sive only in respect of those features where a uniform rule is impera- tive, — features that are essentially national affairs. In all other respects, until Congress acts, the field of interstate as well as intra- state commerce is occupied by the power and existing laws of the State. Into this latter classification, undoubtedly, would fall the duty of the common carrier to receive all proper goods offered to it for transportation, to make no undue discrimination between shippers of a like class, and to transport with reasonable expedition. There is nothing essentially national in these requirements. They can reasonably be left to the judgment of the local law where the snoods are offered. Indeed, the constant and uninterrupted application of such local law to these fields of interstate commerce, through a cen- tury, forestalled the need of any national legislation, and constitutes a cogent illustration of the non-existence of a common law attribu- table to the nation as its sovereign and giver; for, how could the many modifications introduced by the State into these common-law duties and liabilities be effective it there existed also a national common law upon the same subjects, unmodified by Congress, and insusceptible of modification by the States? Having duly considered these criticisms upon and variations from my former holding by some <>f the judges <>f the other circuits, I remain of the opinion that there is no national common or general 126 SWIFT V. PHILADELPHIA & READING RAILROAD CO. [CHAP. I. i_ v law, in the 3ense of a rule of civil conduct, prescribed by the nation, as sovereign, which can be made the basis of an action to recover back rates, simply because the court may find them to be unreason- able. So far as the existing law applicable to the subject of rates in interstate commerce was concerned, prior to the Interstate Commerce Act, the shipper and the carrier were at liberty to make such con- tract as they could agree upon; and such a contract would be left untouched, unless for such reasons as would justify the abrogation of contracts between other parties and upon other subjects. This, of course, does not exempt the carrier from the duty of carrying out the contracts actually made. If, between it and the shipper, a spe- cific rate was fixed, such will control; and if no rate was fixed, the ordinary method employed by the law to supply the missing element of the contract is to be followed. If no rate was fixed, and the ship- ment was not made in contemplation of any specific rate, the impli- cations of the law are that the parties intended a reasonable rate; and the exaction in such cases of an unreasonable rate can be made the basis of a recovery, not because of the existence of any law which prohibits the exaction of unreasonable rates generally, but because, in the particular case in hand, the exact rate is the omitted element of the contract, and must therefore be supplied by the impli- cations of the law. The majority of the counts in the declaration under consideration proceed expressly upon the theory that, irrespective of the contract- between the parties, the law prohibited the exaction of unreasonable rates, and allowed their recovery back upon a showing of the fact. To these counts, in my opinion, a demurrer ought to be sustained. Several of the counts are evidently drawn upon the theory that no specific rate was at the time agreed upon, or in contemplation, and that in view of this the rate actually exacted, being unreasonable, was contrary to the element of the contract read into it by the impli- cations of the law. So far as these counts relate to shipments prior to the Interstate Commerce Act, they present some difficulties, and especially so, in view of the fact that they compress into single aver- ments the different shipments of months and years, each of which must necessarily have been distinct from the other, and properly subject to distinct contracts or rates in contemplation. So far as these counts relate to shipments after the Interstate Commerce Act, I am clear that, in absence of the averment that no rates were pub- lished and in existence as is required by the law, the actions would not lie. By requiring the fixing and publication of these rates, the Interstate Commerce Act supplies at least i^rima facie evidence of the contract rate, which can only be overcome by averment in avoid- ance thereof. One of the counts proceeds upon the theory of unjust discrimination between shippers, but whether it alleges with suffi- cient preciseness that the discrimination was between shippers who, by reason of contemporaneousness of shipment, route traversed, and SECT. III.] WESTERN UNION TELE. CO. V. CALL TUB. CO. 127 character of product shipped, were entitled to like rates, does not clearly appear. My conclusion, on the whole, is to sustain the motion, and allow the demurrers to be tiled, intending to sustain the demurrers to all the counts, except those relating to discrimination, and those relating to shipments prior to the Interstate Commerce Act, which proceed upon the idea that an express contract for rates was not concluded, but was left to the implications of the law. On the counts of this character, I will hear the demurrer, to determine if the allegations of the count are suflieiently specific and single to bring them within the right of recovery. WESTERN UNION TELEGRAPH CO. v. CALL PUBLISHING CO. Supreme Court of the United States. 1901. [Reported 181 United States, 92.] This was an action commenced on April 29, 1891, in the District Court of Lancaster County, Nebraska, lw the Call Publishing Com- pany, to recover sums alleged to have been wrongfully charged and collected from it by the defendant, now plaintiff in error, for tele- graphic services rendered. According to the petition the plaintiff had been engaged in publishing a daily newspaper in Lincoln, Neb- raska, called The Lincoln Daily Call. The Nebraska State Journal was another newspaper published at the same time in the same city, by the State Journal Company. Each of these papers received Asso- ciated Press despatches over the lines of the defendant. The petition alleged : " 4th. That during all of said period the defendant wrongfully and unjustly discriminated in favor of the said State Journal Company and against this plaintiff, and gave to the State Journal Company an undue advantage, in this: that while the defendant demanded, charged, and collected of and from the; plaintiff for the services aforesaid seventy- five dollars per month for such despatches, amounting to 1500 words or less daily, or at the rate of not less than five dollars per 100 words daily per month, it charged and collected from the said State Journal Company for the same, like, and contemporaneous services only the sum of $1.50 per 100 words daily per month. k ' Plaintiff alleges that tin; sum so demanded, charged, collected, and received by the said defendant for the services so rendered the plaintiff, as aforesaid, was excessive and unjust to the extent of the amount of the excess over the rate charged the said State Journal (' pany for the same services, which excess was three dollars and fifty cents per one hundred words daily per month, and to that extent, it, was an un- just and wrongful discrimination against the plaintiff and in favor of the State Journal Company. 128 WESTERN UNION TELE CO. V. CALL PUB. CO. [CHAP. I. "That plaintiff was at all times and is now compelled to pay said excessive charges to the defendant for said services or to do without the same ; that plaintiff could not dispense with such despatches with- out very serious injur}* to its business." The telegraph company's amended answer denied any unjust dis- crimination ; denied that the sums charged to the plaintiff were unjust or excessive, and alleged that such sums were no more than a fair and reasonable charge and compensation therefor, and similar to charges made upon other persons and corporations at Lincoln and elsewhere for like services. The defendant further claimed that it was a cor- poration, engaged in interstate commerce; that it had accepted the provisions of the act of Congress entitled " An act to aid in the con- struction of telegraph lines and to secure to the government the use of the same for postal and other purposes," approved July 24, 1866 ; that it had constructed its lines under the authority of its charter and that act, and denied the jurisdiction of the courts of Nebraska over this controversy. A trial was had, resulting in a verdict and judgment for the plaintiff, which judgment was reversed by the Supreme Court of the State. 44 Neb. 326. A second trial in the District Court resulted in a verdict and judgment for the plaintiff, which was affirmed by the Supreme Court of the State (58 Neb. 192), and thereupon the tele- graph company sued out this writ of error. Brewer, J. 1 The contention of the telegraph compan}- is substantially that the services which it rendered to the publishing company were a matter of interstate commerce; that Congress has sole jurisdiction over such matters, and can alone prescribe rules and regulations therefor ; that it had not at the time these services were rendered prescribed any regulations concerning them ; that there is no national common law, and that whatever ma}' be the statute or common law of Nebraska is wholly immaterial ; and that therefore, there being no controlling statute or common law, the State court erred in holding the telegraph company liable for any discrimination in its charges between the plaintiff and the Journal company. In the brief of counsel it is said : "The contention was consistently and continuously made upon the trial by the telegraph company that, as to the State law, it could not apply for the reasons already given, and that, in the absence of a statute by Congress declaring a rule as to interstate traffic by the tele- graph company, such as was appealed to by the publishing company, there was no law upon the subject." The logical result of this con- tention is that persons dealing with common carriers engaged in inter- state commerce and in respect to such commerce are absolutely at the mercy of the carriers. It is true counsel do not insist that the telegraph company or any other company engaged in interstate commerce may charge or contract for unreasonable rates, but they do not say that they may not, and if there be neither statute nor common law control- 1 Part of the opinion, in which the charge of the court at the trial was given, is omitted. — Ed. SECT. III.] WESTERN UNION TELE. CO. V. CALL PUB. CO. 129 ling the action of interstate carriers, there is nothing to limit their obligation in respect to the matter of reasonableness. We should be very loath to hold that in the absence of congressional action there are no restrictions on the power of interstate carriers to charge for their services ; and if there be no law to restrain, the necessary result is that there is no limit to the charges they may make and enforce. . . . Common carriers, whether engaged in interstate commerce or in that wholly within the State, are performing a public service. They are endowed by the State with some of its sovereign powers, such as the right of eminent domain, and so endowed by reason of the public service they render. As a consequence of this all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast-iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. But that principle of equality does forbid any differ- ence in charge which is not based upon difference in service, and even when based upon difference of service, must have some reasonable re- lation to the amount of difference, and cannot be so great as to produce an unjust discrimination. To affirm that a condition of things exists under which common carriers anywhere in the country, engaged in any form of transportation, are relieved from the burdens of these obliga- tions, is a proposition which, to say the least, is startling. And yet, as we have seen, that is precisely the contention of the telegraph com- pany. It contends that there is no federal common law, and that such has been the ruling of this court ; there was no federal statute law at the time applicable to this case, and as the matter is interstate commerce, wholly removed from State jurisdiction, the conclusion is reached that there is no controlling law, and the question of rates is left entirely to the judgment or whim of the telegraph company. This court has often held that the full control over interstate com- merce is vested in Congress, and that it cannot be regulated by the States. It has also held that the inaction of Congress is indicative of its intention that such interstate commerce shall be free, ami many cases are cited by counsel for the telegraph company in which these propositions have been announced. Reference is also made to opinions in which it has been stated that there is no federal common law differ- ent and distinct from the common law existing in the several States. Thus, in Smith v. Alabama, 124 U. S. 465, 478, it was said by Mr. Justice Matthews, speaking for the court: '■There is no common law of the United States in the sense of a national customary law distinct from the common law of England as adopted by the several States, each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. Wheaton v. Peters, 8 Pet. 591. A determination in a given case of what that law is may be different in a court of the United States from 130 WESTERN UNION TELE. CO. V. CALL TUB. CO. [CHAP. I. that which prevails in the judicial tribunals of a particular State. This arises from the circumstance that courts of the United States, in cases within their jurisdiction where they are called upon to administer the law of the State in which they sit, or by which the transaction is governed, exercise an independent, though concurrent, jurisdiction, and are required to ascertain and declare the law according to their own judgment. This is illustrated by the case of Railroad Co. v. Lockwood, 17 Wall. 357, where the common law prevailing in the State of New York in reference to the liability of common carriers for negligence received a different interpretation from that placed upon it by the judicial tribunals of the State; but the law as applied is none the less the law of that State," p. 478. Properly understood, no exceptions can be taken to declarations of this kind. There is no body of federal common law separate and dis- tinct from the common law existing in the several States in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. What is the common law? According to Kent : " The common law includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." 1 Kent, 471. As Blacks tone says : " Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind ; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority ; and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom. This unwritten, or common, law, is properly distinguishable into three kinds : 1. General customs ; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification." 1 Blackstone, 67. In Black's Law Dictionary, page 232, it is thus defined : k ' As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action relating to the govern- ment and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforc- ing such usages and customs ; and, in this sense, particularly the ancient unwritten law of England." Can it be that the great multitude of interstate commercial trans- actions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to be found in the SECT. III. j WESTERN UNION TELE. CO. V. CALL PUB. CO. 13 J statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions except so far as they are modified b\' congressional enactment. But this question is not a new one in this court. In Interstate Commerce Commission r. Baltimore & Ohio Railroad, 14;") U. S. 263 : , 275, a case which involved interstate commerce, it was said by Mr. Justice Brown, speaking for the court : " Prior to the enactment of the act of February 4. 1887, to regulate commerce, commonly known as the interstate commerce act, 24 Stat. 379, c. 104, railway traffic in this country was regulated by the princi- ples of common law applicable to common carriers." In Bank of Kentucky v. Adams Express Co., and Planters' Bank v. Express Co., 93 U. S. 174. 177, the express companies received at New Orleans certain packages for delivery at Louisville. These were interstate shipments. In the course of transit the packages were destroyed by fire, and actions were brought to recover the value thereof. The companies defended on the ground of an exemption from liability created by the contracts under which they transported the packages. Mr. Justice Strong, delivering the opinion of the court after describing the business in which the companies were engaged, said : "Such being the business and occupation of the defendants, they are to be regarded as common carriers, and, in the absence of stipula- tions to the contrary, subject to all the legal responsibilities of such carriers." And then proceeded to show that they could not avail themselves of the exemption claimed by virtue of the clauses in the contract. The whole argument of the opinion proceeds upon the assumption that the common-law rule in respect to common carriers controlled. Reference may also be made to the elaborate opinion of District Judge Shiras, holding the Circuit Court in the Northern District of Iowa, in Murray v. Chicago & Northwestern Railway, 62 Fed. Rep. 24, in which is collated a number of extracts from opinions of this court, all tending to show recognition of a general common law existing throughout the United States, not, it is true, as a body of law distinct from the common law enforced in the States, but as containing the general rules and principles by which all transactions are controlled, except so far as those rules and principles are set aside by express statute. It would serve no good purpose to here repeat those quota- tions ; it is enough to refer to the opinion in which they are collated. It is further insisted tint even if there be a law which controls there is no evidence of discrimination such as would entitle the plaintiff to the verdict which it obtained. Hut there was testimony tending to show the conditions under which the services were rendered to the two publishing companies, and it was :i question of fact whether, upon the differences thus shown, there was an unjust discrimination. And 132 HAVEN V. FOSTEK. [CHAP. I. questions of fact, as has been repeatedly held, when once settled in the courts of a State, are not subject to review in this court. Dower v. Richards, 151 U. S. 658; Egan v. Hart, 165 U. S. 188; Chicago, Burlington, etc. Railroad v. Chicago, 166 U. S. 226-242 ; Hedrick v.. Atchison, Topeka & Santa Fe Railroad, 167 U. S. 673, 677 ; Gard- ner v. Bonestell, 180 U. S. 362. These are the only questions of a federal nature which are pre- sented b\- the record, and finding no error in them the judgment of the Supreme Court of Nebraska is Affirmed. SECTION IV. THE NATURE OF FOREIGN LAW. HAVEN v. FOSTER. Supreme Judicial Court of Massachusetts. 1829. [Reported 9 Pickering, 112.] Morton, J. 1 By the statute of distributions of this State these heirs, standing in the same degree of relationship to the intestate, inherited his estate in equal proportions. But by the statute of New York, which carries the doctrine of representation farther than Hie law of this State, or, indeed, than the civil or common law, these heirs inherited per stupes and not per capita. So that the estate :in New York descended, one half to the wife of the plaintiff, and the other half to the defendant and his two brothers; being one sii;th instead of one quarter to each. Of the provisions and even existence of this statute, all the heirs were entirely ignorant during the whole of the transactions stated in the case. The plaintiff having discovered the mistake, now seeks by this action to reclaim, of the defendant one third of the amount received by him on account of the sale of the New York lands, with interest from the time of its receipt. And the question now sub- mitted to our decision is, whether he is entitled to a repetition of the whole or any part of this amount. Had the parties been informed of their respective rights under the laws of New York, it cannot be doubted that the plaintiff would have retained one moiety of the land in that State, or would have received to himself one half of the consideration for which it was sold. The 1 The statement of facts, arguments of counsel, and parts of the opinion involving other questions, are omitted. — Ed. SECT. IV.] HAVEN V. FOSTER. 133 distribution of the avails of the sale was made by the heirs upon the confident though mistaken supposition, that they were equally entitled to them. They acted in good faith, upon a full conviction that they were equal owners of the estate. It turned out, however, to the sur- prise of all of them, that they owned the estate in very unequal proportions, and that the defendant and his brothers had received not only the price of their own estate, but also the price of a part of the plaintiff's estate. Equity would therefore seem to require, that the defendant should restore to the plaintiff the amount received for the plaintiff's estate. It was received by mistake, and but for the mistake would not have come to the defendant's hands. If the whole estate had been owned by the plaintiff, and the defendant, having no interest in it, had received the whole consideration, the equitable right of repetition woiuld have been no stronger; it might have been more manifest. . . . That a mistake in fact is a ground of repetition is too clear and too well settled to require argument or authority in its support. The misapprehension or ignorance of the parties to this suit related to a statute of the State of New York. Is this, in the pres- ent question, to be considered fact or laiv? The existence of any foreign law must be proved by evidence showing what it is. And there is no legal presumption that the law of a foreign State is the same as it is here. 2 Stark. Ev. (Met- calf's ed.), 568; Male v. Roberts, 3 Esp. Rep. 163. If a foreign law is unwritten, it may be proved by parol evidence; but if written, it must be proved by documentary evidence. Kenny v. Clarkson, 1 Johns. R. 385; Frith v. Sprague, 14 Mass. R. 455; Consequa v. Willings, 1 Peters' s C. C. R. 229. The laws of other States in the Union are in these respects foreign laws. Raynham v. Canton, 3 Pick. 293. The courts of this State are not presumed to know the law=s of other States or foreign nations, nor can they take judicial cogni- zance of them, till they are legally proved before them. But when established by legal proof, they are to be construed by the same rules and to have the same effect upon all subjects coming within their operation, as the laws of this State. That the lex loci rei sites must govern the descent of real estate, is a principle of our law, with which every one is presumed to be acquainted. But what the lex loci is, the court can only learn from proof adduced before them. The parties knew, in fact, that the intestate died seised of estate situated in the State of New York. They must be presumed to know that the distribution of that estate must be governed by the laws of New York. But are they bound, on their peril, to know what the provisions of these laws are? If the judicial tribunals are not presumed to know, why should private citizens be? If they are to be made known to the court by proof, like other facts, why should not ignorance of them by private indi- 134 KLINE V. BAKER. [dlAP. 1 yiduals have the same effect upon their acts as ignorance of other facts? Juris ignorantia est, cum jus nostrum, ignoramus, and does not extend to foreign laws or the statutes of other States. We are of opinion, that in relation to the question now before us, the statute of New York is to be considered as a fact, the ignorance of which may be ground of repetition. And whether ignorantia legis furnishes a similar ground of repetition, either by the civil law, the law of England, or the law of this commonwealth, it is not necessary for us to determine. KLINE v. BAKER. Supreme Judicial Court of Massachusetts. 1868. [Reported 99 Massachusetts Reports, 253.] Gray. J. This action of replevin is brought by the seller of intoxi- cating liquors against a deputy sheriff attaching the same as the prop- erty of the purchaser. The plaintiff contends that the sales were induced by fraud of the purchaser and therefore passed no title to him ; and the burden of proving this proposition is upon the plaintiff. The seller resided in Pennsylvania, and the purchaser in Illinois. The goods were sold in two lots, one in June and the other in August, 1865, upon distinct orders sent by the purchaser to the seller. Al- though the first order was in accordance with terms of sale agreed on between the agents of the parties in Illinois, neither sale was complete until delivery of the goods. That delivery in each case was made to a railroad corporation in Philadelphia, which, in the absence of any agreement between the parties to the contrary, was in law a delivery to the purchaser. Each contract of sale therefore was completed in Penn- sylvania, and its validity must be governed by the laws of that State. Orcutt v. Nelson, 1 Gray, 536; Finch v. Mansfield, 97 Mass. 89: 2 Kent Com. (6th ed.) 458. The laws of another State are not laws of this Commonwealth, which our citizens are bound to know, or of which our courts have judicial knowledge ; but they are facts, of which both citizens and courts must be informed as of other facts. As foreign laws can only be known so far as they are proved, no evidence of them can be admitted at the argument before this court, which was not offered at the trial or other- wise made part of the case reserved. Knapp v. Abell, 10 Allen, 485 ; Bowditch v. Soltyk. 99 Mass. 138. When the evidence consists of the parol testimony of experts as to the existence or prevailing construc- tion of a statute, or as to any point of unwritten law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. Holman v. King, 7 Met. 384 ; Dyer v. Smith, 12 Conn. 384; Moore v. Gwynn, 5 Ired. 187; Ingra- SECT. IV.] KLINE V. BAKER. 135 ham v. Hart, 11 Ohio. 255. But the qualifications of the experts, or other questions of competency of witnesses or evidence, must be passed upon by the court ; and when the evidence admitted consists entirely of a written document, statute, or judicial opinion, the question of its construction and effect is for the court alone. Church v. Ilubbart, 2 Cranch, 187 ; Ennis v. Smith, 14 How. 400 ; Owen v. Boyle, 15 Maine, 147 ; State v. Jackson, 2 Dev. 563 ; People v. Lambert, 5 Mich. 349 ; Bremer v. Freeman, 10 Moore P. C. 306; Di Sora v. Phillipps, 10 H. L. Cas. 624. And if the evidence is uncontradicted, and will not support the action, it is the duty of the court so to instruct the jury. By the law of Massachusetts, purchasing goods with an intention not to pay for them is of itself a fraud which will render the sale void and entitle the seller to reclaim the goods. Dow v. Sanborn, 3 Allen, 181. The only evidence, introduced at the trial, of the law of Penn- sylvania upon this subject was the cases of Smith v. Smith, 21 Penn. State. 317, and Backentoss v. Speicher, 31 Penn. State, 324, as pub- lished in the official reports, by which it appears that, in the opinion of the Supreme Court of that State, there must be " artifice, intended and fitted to deceive, practised by the buyer upon the seller," in order to constitute such a fraud as will make the sale void ; and that the buy- er's intention not to pay for the goods and concealment of his own insolvency is not such a fraud. These reports were competent, and, in the absence of all other evidence, conclusive proof, of the law of Penn- sylvania. Gen. Sts. c. 131, § 64. Penobscot & Kenebec Railroad Co. v. Bartlett, 12 Gray, 244. But the plaintiff introduced evidence that Burleigh, who was either a partneror the manager of the business of Dore, the purchaser, represented to Sheble, the agent of the plaintiff, at the time of negotiating with him for the purchase of the first lot of liquors, and within ten days before sending the order for them to Philadelphia, that Dore had a farm worth ten thousand dollars, and other means amply sufficient to carry on his business, and that he always purchased for cash and did not owe any man ; and that these representations were false. This was clearly suf- ficient evidence of fraudulent representations intended to induce and in fact inducing the plaintiff to sell to Dore, or, in the language of the Supreme Court of Pennsylvania, " artifice, intended and fitted to de- ceive, practised by the buyer upon tlifi seller," to warrant a jury in finding that the purchase made immediately afterwards on a credit of sixty days, as well as the subsequent purchase made before that credit had" expired, was fraudulent and passed no title. The learned judge therefore erred in ruling that upon the evidence the plaintiff could not recover, and in directing a verdict for the defendant. Nichols v. Pin- ner, 18 N. Y. 295, and 23 N. V- 264 ; Hall v. Naylor, 18 N. Y. 588 ; Reenie v. Parthemere, 8 Penn. State, 460 ; Seaver v. Dingley, 4 Greenl. 300 ; Wiggin v. Day, 9 Gray, 97. Exceptions sustained. 136 FOREPAUGH V. D. L. & W. RAILROAD CO. [dlAP. Story, J., in Owixgs v. Hull, 9 Pet. 607 (1835). [In error to the Circuit Court for the District of Maryland.] We are of opinion that the Circuit Court was bound to take judicial notice of the laws ol Louisiana. The Circuit Courts of the United States are created by Congress, not for the purpose of administering the local law of a single State alone, but to administer the laws of all the States in the Union in cases to which they respectively apply. The judicial power con- ferred on the general government by the Constitution extends to many cases arising under the laws of the different States. And this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the States. That jurisprudence is, then, in no just sense, a foreign jurisprudence, to be proved, in the courts of the United States, by the ordinary modes of proof by which the laws of a foreign country are to be established ; but it is to be judicially taken notice of in the same manner as the laws of the United States are taken notice of by these courts. Bradley, J., in United States v. Perot, 98 U S. 428 (1879). We are bound to take judicial notice that the Mexican league was not the same as the American league. The laws of Mexico, of force in Texas previous to the Texan Revolution, were the laws not of a foreign, but of an antecedent government, to which the Government of the United States, through the medium of the Republic of Texas, is the direct successor. Its laws are not deemed foreign laws ; for as to that por- tion of our territory they are domestic laws ; and we take judicial notice of them. Fremont v. U. S., 17 How. 542, 557. FOREPAUGH v. DELAWARE, LACKAWANNA & WESTERN RAILROAD CO. Supreme Court of Pennsylvania. 1889. [Reported 128 Pennsylvania State Reports, 217.] Mitchell, J. Plaintiff, being the proprietor of a circus, made a special contract with defendant for the transportation of a number of his own cars, upon certain conditions and terms elaborately set out in writing, among which was a stipulation that, in consideration that the service was to be performed " for much less than the ordinary, usual, and legal rates charged other parties for a like amount of transporta- tion," the plaintiff released the defendant from all liability for or on account of loss, damage, or injury to any of the animals, property, or things thus transported, " although such loss, damage, or injury may SECT. IV.] FORBPAUGH V. D. L. & W. RAILROAD CO. 137 be caused by the negligence of the [defendant], its agents or em- ployes." Damage having occurred by the negligence of defendant, plaintiff brought this suit, and the sole question before us is whether it can be maintained in the face of the stipulation above set forth. The contract was made, was to be performed, and the alleged breach occurred, in New York. No possible element was wanting, therefore, to make it a New York contract. It is admitted that in New York the stipulation is valid, and this action could not be maintained. Cragin v. Railroad Co., 51 N. Y. 61; Mynard v. Railroad Co., 71 N. Y. 180; Wilson v. Railroad Co., 97 N. Y. 87. Why, then, should plaintiff, by stepping across the boundary into Pennsylvania, acquire rights which he has not paid for, and his contract does not give him ? It is argued that the validity of this contract is a question of com- mercial law, and therefore the mere decisions of the New York courts are not binding ; and. in the absence of any statute in New York expressly authorizing such a contract, the courts of this State must follow their own views of the commercial as part of the general com- mon law, though different views may be held as to such law by the courts of New York. This is the main argument of the plaintiff, and, as it is one which is frequently advanced, and affects a number of important questions, it is time to say plainly that it rests upon an utterly inadmissible and untenable basis. There is no such thing as a general commercial or general common law, separate from, and irrespec- tive of, a particular State or government whose authority makes it law. Law is defined as a rule prescribed by the sovereign power. By whom is a general commercial law prescribed, and what tribunal has authority or recognition to declare or enforce it, outside of the local jurisdiction of the government it represents? Even the law of nations, the widest reaching of all, is a law only in name. It has but a moral sanction, and the only tribunal that undertakes to enforce it is the armed hand, the ultima ratio regum. The so-called commercial law is likewise a law only iu name. Upon many questions arising in the business deal- ings of men, the laws of modern civilized States are substantially the same; and it is therefore common to say that such is the commercial law, but, except as a convenient phrase, such general law does not exist. There must be a State or government, of which every law can be predicated, and to whose authority it owes its existence as law. Without such sanction, it is not law at all ; with such sanction, it is law without reference to its origin, or the concurrence of other States or people. Such sanction it is the prerogative of the courts of each State themselves to declare. Their jurisdiction is final and exclusive, and in this respect there is no distinction between statute and common law. It is universally conceded that, as to statutes, the decisions of the State courts are binding upon all other tribunals, yet such decisions have no higher sanction than those upon the common law ; for what the latter determine, equally with the former, is the hivv of the particu- lar State. The law of Pennsylvania consists of the Constitution. 138 FOREPAUGH V. D. L. & W. RAILROAD CO. [CHAP. 1. treaties, and statutes of the United States, the Constitution and statutes of this State, and the common law, not of any or all other countries, but of Pennsylvania. There is a common law of England, and a common law of Pennsylvania mainly founded thereon, but with certain differences ; and the only tribunal competent to pass authorita- tively on such differences is a Pennsylvania court. To take a familiar illustration : In the United States the universal doctrine has always been that the English colonists brought with them, and made part of their laws, all the common law of England that was not unsuited to their new situation. No part of the common law of England is better settled than the doctrine of ancient lights. The Court of Chancery of New Jersey, in Robeson v. Pittenger, 2 N. J. Eq. 57 (1838), held that the same doctrine was part of the common law of New Jersey. The Supreme Court of Pennsylvania, on the other hand, starting with the same premises, and reasoning on the same principles but, proceed- ing cautiously from the dictum of Rogers, J., in Hoy v. Sterrett, 2 Watts, 331 (1834), to the unanimous decision of the court in Haverstick v. Sipe, 33 Pa. St. 368 (1859), held that the doctrine of ancient lights by prescription was not part of the common law of Pennsylvania. No tribunals of any other State presume to question that the common law of New Jersey and the common law of Penn- sylvania differ on this point. What is law in one State is not law in the other, not because it was or was not the common law of England, but because it is or is not the law of the respective States ; and, though it rests only on the decisions of the courts, it is none the less absolutely and indisputably the law, than if it had been made so by statute. I have purposely selected an illustration from the law relating to real estate, because, if I took one from the commercial law, it might seem like assuming the very question under discussion. But the example is none the less pertinent. The point is the force of judicial decisions on the common law, and the assumption that there is an} T tenable basis for holding them less binding upon such law than upon statutes. The so- called commercial law derives all its force from its adoption as part of the common law, and a decision on the commercial law of a State stands upon precisely the same basis as a decision upon an}' other branch of the common law. The only ground upon which any foreign tribunal can question either is that it does not agree with the premises or the reasoning of the court. But the same ground would enable it to question a decision upon a statute because a different construction seemed to it nearer the true intent of the legislative language, and this, it is universally conceded, no foreign court can do. There is no differ- ence in principle. The decisions of a State court, upon its common law and on its statutes, must stand unquestioned, because it is the onl}' authority competent to decide ; or they must be alike question- able by any tribunal which may choose to differ with its reasons or its conclusions. It is not probable that the doctrine of such a distinction would ever have got a foothold in jurisprudence, and it would certainly have been SECT. IV.] FOREPAUGH V. D. L. & W. RAILROAD CO. 139 long ago abandoned, had it not been for the unfortunate misstep that was made in the opinion in Swift v. Tyson, 16 Pet. 1. Since then the courts of the United States have persisted in the recognition of a mythical commercial law, and have professed to decide so-called com- mercial questions by it, in entire disregard of the law of the State where the question arose. It is argued now that, as to such questions, the State courts also have similar liberty. It would be sufficient an- swer to this argument that such a course, by reading into a contract a new duty not in contemplation of the parties, and not part of it by the law of the place where it is made, is, in principle and in practical effect, impairing the obligation of the contract, which even the sover- eign power of a State is prohibited from doing. But we prefer to rest the matter on the broader ground that the doctrine itself is un- sound. The best professional opinion has long regarded it as indefen- sible on principle, and is thus very recently summed up by the most learned of living jurists: " Questions growing out of contracts made and to be performed in a State are decided by the national court of last resort, not in accordance with the unwritten or customary law of the State where they originated, as expounded by its courts, but agreeably to some theoretic view of a general commercial law, which does not exist, and is not to be found in the books. The State courts, on the other hand, adhere to their own precedents, and do not consider them- selves entitled to impair the obligation of contracts that have been made in reliance on the principles which they have laid down through a long series of years. The result is a conflict of jurisdiction which there are no means of allaying. . . . Whether a recovery shall be had on a promissory note which has been taken as collateral security for an antecedent debt against a maker from whom it was obtained by fraud, is thus made to turn in New York, Pennsylvania, and Ohio, not on any settled rule, but on the tribunal by which the cause is heard ; and, if that is federal, the plaintiff will prevail; if it is local, the defendant. Such a result tends to discredit the law. . . . The enumeration might be carried further, but enough lias, perhaps, been said to show that no uniform rule can be deduced from the decisions of the English and American courts under the commercial law, and that the certainty requisite to justice can be obtained only by following the local tribunals as regards the contracts made in each locality. The several States of this country are collectively one nation, but they are as self-governing in all that concerns their purely internal commerce as if the general government did not exist; and when the will of the people of New York or Pennsylvania is declared on such matters, through their repre- sentatives in the local legislatures, expressly or by long-continued acquiescence in the rules enunciated by their judges, it cannot beset aside by Congress short of an amendment of the Constitution. Had the New York legislature declared that notes made and negotiated ii; that State should follow the rule laid down in Coddinuton <•. Bay [20 Johns. 637], the federal tribunals would have been bound to carry it into effect, notwithstanding any attempt of the national legislature 140 FOREPAUGH V. D. L. & W. RAILROAD CO. [CHAP. I. to introduce a different principle ; and it is inconceivable that the judicial department of the government can exercise a greater authority in this regard than the legislature." Hare, Const. Law, 1107, 1117, and see Lecture 51, passim. We conclude, therefore, that the distinction between the binding effect of decisions on commercial law and on statutes is utterly untenable ; that the law declared by State courts to govern on con- tracts made within their jurisdiction is conclusive everywhere ; and the departure made by the United States courts is to be regretted, and certainly not to be followed. In entire accordance with this view are our own cases of Brown v. Railroad Co., 83 Pa. St. 316, and Brooke v. Railroad Co., 108 Pa. St. 530, 1 Atl. Rep. 206 ; and the decisions in Ohio : Knowlton v. Railway Co., 19 Ohio St. 260 ; in Illinois : Penn- sylvania Co. v. Fairchild, 69 111. 260 ; Railroad Co. v. Smith, 74 III. 197 ; in Iowa : Talbott v. Transportation Co., 41 Iowa, 247 ; Robinson v. Transportation Co., 45 Iowa, 470; in Connecticut: Hale v. Naviga- tion Co., 15 Conn. 539; in Kansas: Railroad Co. v. Moore, 29 Kan. 632 ; in South Carolina : Bridger v. Railroad Co., 27 S. C. 462, 3 S. E. Rep. 860 ; in Georgia : Railroad Co. v. Tanner, 68 Ga. 390 ; in Missis- sippi : McMaster v. Railroad Co., 65 Miss. 271, 4 South. Rep. 59 ; in Texas : Cantu v. Bennett, 39 Tex. 303 ; Ryan v. Railway Co., 65 Tex. 13, and perhaps in other States. I will not notice them in detail further than to quote the terse and forcible summary made by Scott, J., in Knowlton v Railway Co. : " As the contract was made within the jurisdiction of New York, and contemplated no action outside of that jurisdiction, it is clear that the question of its validity must be deter- mined solely by the laws of New York. The rights and obligations of the parties to such a contract, and in respect to the manner of its execution, cannot be affected by the laws or policy of other States. If no cause of action arose to the plaintiff under his contract when the accident occurred, the transaction cannot be converted into a cause of action by the fact that the parties have subsequently come within the jurisdiction of Ohio." Holding, therefore, that the validity of this contract is to be determined by the law of New York, as decided by the courts of that State, is there any reason why the courts of this State should not enforce it? The general ride is that courts will enforce contracts valid by the law of the place where made, unless they are injurious to the interests of the State, or of its citizens. Story, Confl. Laws, §§ 38, 244. The injury may be indirect by offend- ing against justice or morality, or by tending to subvert settled public policy (2 Kent, Com. 458 ; Greenwood v. Curtis, 6 Mass. 358 ; Bliss v. Brainard, 41 N. H. 256) ; but this does not imply that courts will not sustain contracts that would not be valid if made within their juris- diction, or will not enforce rights that could not be acquired there Thus, for example, the courts of Pennsylvania have always enforced contracts for a higher rate of interest than would be valid under the laws of this State. Ralph v. Brown, 3 Watts & S. 395 ; Wood v. Kelso, 27 Pa. St. 243 ; Irvine v. Barrett, 2 Grant, Cas. 73. The con- SECT. IV.] FOREPAUGH V. D. L. & W. RAILROAD CO. 141 tract in the present case does not directly affect the State or its citizens in any way. Nor is it in any way contrary to justice or morality. It may be doubted whether it is even so far contrary to the policy of the State that it would have been invalid if it had been made here. It has some exceptional features, which, it is argued, take it out of the ordinary rules governing the contracts of common carriers ; and the case of Coup v. Railroad Co., 56 Mich. Ill, 22 N. W. Rep. 215, is a strong authority for that position. But without stopping to discuss that point, which our general view renders unnecessary, it is sufficient to say that, even if it would not have been valid if made here, its enforcement as a New York contract does not in any way derogate from the laws of Pennsylvania, or injure or affect the policy of the State, anv more than would a foreign contract for what would be usurious interest here, and that, as already said, the courts have never hesitated to enforce. The argument of duress may be briefly dismissed for want of any evidence in the case to sustain it. There is no evidence that defend- ant was unwilling to accept the ordinary and usual rates for the trans- portation of plaintiffs cars and property. If they had been offered by plaintiff and refused, there might have been some ground for the present argument, though, in view of the peculiar nature of the property, and the special facilities required, even that is far from clear. But in fact plaintiff got a large reduction of rates, and part of the consideration for such reduction was the agreement that he should be his own insurer against loss by accident. There was nothing com- pulsory about such a contract, and plaintiff comes now with a very bad grace to assert a right that he expressly relinquished for a sub- stantial consideration. The learned court below was right in entering judgment for the defendant on the facts found in the special verdict. Judgment affirmed, Williams, J. {dissenting). I dissent from the judgment in this case because I cannot agree that a well-settled rule of public policy of this commonwealth must give way to considerations of mere comity. The contract set up as a defence to this action is a release to a common carrier from liability for its own negligence. It is well settled in tins State that such a release is against public policy. Comity does not require more of us than to give effect to the lex loci contractus, when not subversive of the public policy of our own State. This has been distinctly held by the Court of Appeals of New York, in which this release was executed, and in whose behalf comity is asked. I would follow the Court of Appeals, because comity can require no more of us in any given case than the courts of the place of the contract would yield to us for comity's sake, and because I believe the rule to rest on solid ground. Sterrett, J., concurs in the foregoing dissent. 142 ST. NICHOLAS BANK V. STATE NATIONAL BANK. [CHAP. T. ST. NICHOLAS BANK v. STATE NATIONAL BANK Court of Appeals of New York. 1891. [Reported 128 New York Reports, 26.] Earl, J. 1 This action was brought to recover the proceeds of a draft for $473.57 sent for collection by the plaintiff to the defendant, and paid to the defendant's correspondents. The trial resulted in the direction of a verdict for the plaintiff for the amount demanded. Upon appeal to the general term, the judgment entered upon the ver- dict was reversed, and a new trial ordered. From the order of reversal the plaintiff appealed to this court. . . . The rule has long been established in this State that a bank receiv- ing commercial paper for collection, in the absence of a special agree- ment, is liable for a loss occasioned by the default of its correspondents or other agents selected by it to effect the collection. Allen v. Bank, 22 Wend. 215 ; Montgomery County Bank v. Albany City Bank, 7 N. Y. 459 ; Commercial Bank v. Union Bank, 11 N. Y. 203 ; Ayrault v. Pacific Bank, 47 N. Y. 570 ; Naser v. Bank, 116 N. Y. 498, 22 N. E. Rep. 1077. And the same rule prevails in some of the other States, in the United States Supreme Court, and in England. Titus v. Bank, 35 N. J. Law, 588 ; Wingate v. Bank, 10 Pa. St. 104 ; Reeves v. Bank, 8 Ohio St. 465 ; Tyson v. Bank, 6 Blackf. 225 ; Simpson v. Waldby (Mich.), 30 N. W. Rep. 199 ; Mackersy v. Ramsays, 9 Clark & F. 818. In such a case the collecting bank assumes the obligation to collect and pa}' over or remit the money due upon the paper, and the agents it employs to effect the collection, whether the} 7 be in its own banking-house or at some distant place, are its agents, and in no sense the agents of the owner of the paper. Because they are its agents, it is responsible for their misconduct, neglect, or other default. . . . The defendant, however, claims that the contract with the plaintiff is to be treated as a Tennessee contract, and that by the law of that State it cannot be made liable for this loss. Upon the trial, for the purpose of showing the law of that State, it put in evidence a decision of the Supreme Court in the case of Bank of Louisville v. First Nat. Bank of Knoxville, 8 Bast. 101. . . . That decision was not based upon any statute law, but upon the principles of the common law, supposed to be applicable to the facts of the case. It did not make or establish law, but expounded the law, and furnished some evidence of what the law applicable to that case was, — evidence which other courts might or might not take and receive as reliable and sufficient ; and even the same court, upon fuller discussion and more mature consideration, might, in some subsequent case, refuse to take the same view of the law. There is no common law peculiar to Tennessee. But the 1 Part of the opinion is omitted. — Ed. SECT. V.] BANK OF AUGUSTA V. EARLE. 143 common law there is the same as that which prevails here and else- where, and the judicial expositions of the common law there do not bind the courts here. The courts of this State, and of other States, and of the United States, would follow the courts of that State in the construction of its statute law. But the courts of this State will follow its own precedents m the expounding of the general common law ap- plicable to commercial transactions, and so it has been repeatedly held. Faulkner v. Hart, 82 N. Y. 413 ; Swift v. Tyson, 16 Pet. 1 ; Oates v. Bank, 100 U. S. 239 ; Ray v. Gas Co., 20 Atl. Rep. 1065 (decided in Pennsylvania Supreme Court, Jan. 12, 1891). We must, therefore, hold that the obligation resting upon the defendant was that which the principles of the common law, as expressed by the courts of this State, placed upon it. If it be said that the contract between these parties was made in view of the common law, then we must hold that it was the common law as expounded here. But it cannot be maintained that the contract between these parties was a Tennessee contract. It is by no means clear, even, that it can be held that the contract was made there. 1 . . . Our conclusion, therefore, is that the order of the general term should be reversed, and the judgment entered upon the verdict affirmed with cosfcs. All concur. SECTION V. COMITY. Marshall, C. J., in The Nereide, 9 Cr. 388, 422 (1815). The court is decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citi- zens, is a political, not a legal measure. It is for the consideration of the government, not of its courts. The degree and kind of retalia- tion depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics. Taney, C. J., in Bank op Augusta v. Earle, 13 Pet. 519, 589 (1839). It is needless to enumerate here the instances in which, by the general 1 The court fouml that the contrart was not a Tennessee contract. — Ed. £44 HILTON V. GUYOT. [CHAP. I. practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. . . . The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when con- trary to its policy or prejudicial to its interests. But it contributes so largefy to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continualby acted upon it, as a part of the voluntary law of nations. It is truly said in Story's Conflict of Laws, 37, that " In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them b} T their own government, unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation which is adminis- tered, and ascertained in the same way, and guided by the same reasoning by which all other principles of municipal law are ascer- tained and guided." Gray, J., in Hilton v. Guyot, 159 U. S. 113, 163 (1895). No law has any effect, of its own force, beyond the limits of the sover- eignt3' from which its authority is derived. The extent to which the law of one nation, as put in force within its territor}*, whether by execu- tive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call " the comity of nations." Although the phrase has been often criticised, no satisfactory sub- stitute has been suggested. " Comity," in the legal sense, is neither a matter of absolute obli- gation, on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international dut} - and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. 1 1 See the dissenting opinion of Fuller, C. J., in the same case, at p. 233 ; and see further Dicey on the Conflict of Laws, p. 10. — Ed. CHAPTER II. JURISDICTION OVER PERSONS AND THINGS. SECTION I. DOMICILE. 1 BELL v. KENNEDY. House of Lords. 1868. [Reported Law Reports, 1 House of Lords (Scotch), 307.] The Lord Chancellor (Lord Cairns). 2 My Lords, this appeal arises in an action commenced in the Court of Session, I regret to say so long ago as the year 1858; in the course of which action no less than sixteen interlocutors have been pronounced by the court, all, or the greater part of which, become inoperative or imma- terial if your Lordships should be unable to concur in the view taken by the court below of the question of domicile. The action is raised by Captain Kennedy, and his wife, the daughter of the late Mrs. Bell ; and the defender is Mrs. Kennedy's father, the husband of Mrs. Bell. The claim is for the share, said to belong to Mrs. Kennedy, of the goods held in communion between Mr. and Mrs. Bell. This claim proceeds on the allegation that the domicile of Mrs. Bell, at the time of her death on the "28th of Sep- tember, 1838, was in Scotland. And the question itself of her domi- cile at that time depends upon the further question, what was the domicile of her husband? Her husband, the appellant, is still living; and your Lordships have therefore to consider a case which seldom arises, the question, namely, of the domicile at a particular time of a person who is still living. Mr. Bell was born in the island of Jamaica. His parents had come there from Scotland, and had settled in the island. There appears to be no reason to doubt but that they were domiciled in Jamaica. His father owned and cultivated there an estate called the i For the general principles of nationality see Calvin's Case, 7 Co. 1; U S v Wona Kim Ark, 169 U. S. 649. — Ed. 2 The statement of facts is omitted, as are also the concurring opinions of Lords CBANWOETH, ('hki,mnioi:i>, and Colonsay. — Ki>. in 146 BELL V. KENNEDY. [CHAP. II. Woodstock estate. His mother died when the appellant was about the age of two years, and immediately after his mother's death he was sent to Scotland for the purpose of nurture and education. By his father's relatives he was educated in Scotland at school, and he afterwards proceeded to college. His father appears to have died when he was about the age of ten years, dying, in fact, as he was coming over to Great Britain for his health, but with the intention of returning to Jamaica. The appellant, after passing through college in Scotland, travelled upon the Continent; and soon after he attained the age of twenty-one years he went out again to Jamaica, in the year 1823, with the inten- tion of carrying on the cultivation of the Woodstock estate, which, in fact, was the only property he possessed. He cultivated this estate and made money to a considerable amount. He arrived at a position of some distinction in the island. He was the custos of the parish of St. George, and was a member of the Legislative Assembly. He married his late wife, then Miss Hosack, in Jamaica in the year 1828; and he had by her, in Jamaica, three children. It appears to me to be beyond the possibility of doubt that the domicile of birth of Mr. Bell was in Jamaica, and that the domicile of his birth continued during the events which I have thus described. In the year 1834 a change was made in the law with regard to slavery in the island of Jamaica, which introduced, in the first instance, a system of apprenticeship, maturing in the year 1838 into a complete emancipation. This change appears to have been looked upon by Mr. Bell with considerable disfavor, and, his health fail- ing, in the year ^837 he determined to leave Jamaica, and to return to some part, at all events, of Great Britain. He entered into a con- tract for the sale of the Woodstock estate, the purchase-money being made payable by certain instalments; and in 1837 he left the island, to use his own expression, "for good." He abandoned his residence there without any intention at that time, at all events, of returning to the island. He reached London in the month of June, 1837. He remained in London for a short time, apparently about ten days, and he then went on to Edinburgh, and took up his abode under the roof of the mother of his wife, Mrs. Hosack, who at that time was living in Edinburgh. I ought to have stated that while the appellant was in Jamaica he appears to have kept up a correspondence with his relatives and friends in Scotland. In the year 1833 he acquired (I prefer to use the term "acquired " rather than the word "purchased ") the estates of Glengabers and Craka. He appears to have taken to those estates mainly in settlement of a claim for some fortune or money of his wife secured upon them. It is apparent, however, that he had at no time any intention of residing upon Glengabers, and, in fact, the acquisition of those estates bears but little, in my opinion, upon the question of domicile, because in 1833, when he acquired them, his SECT. I.] BELL V. KENNEDY. 147 domicile, beyond all doubt, was. and for some years afterwards con- tinued to be, in Jamaica. He wrote occasionally at that time from Jamaica, evincing a desire to buy an estate at some future period in Scotland, if be could obtain one to his liking, and even an intention, if he could obtain such an estate, of living in Scotland, but nothing definite appears to have been arranged or said upon the subject; and, in fact, at this time other suggestions as to other localities appear to have been occasion- ally entertained and considered by him. In these letters he frequently uses an expression that was much insisted upon at the bar — the expression of "coming home;" but I think it will" be your Lordships' opinion that the argument is not much advanced, one way or the other, by that expression. It ap- pears to me to be obviously a form of language that would naturally be used by a colonist in Jamaica speaking of the mother country in contradistinction to the colony. Up to this point, my Lords, there is really no dispute with regard to the facts of the case. The birth-domicile of the appellant in Jamaica continued, at all events till 1837, and the onus lies upon those who desire to show that there was a change in this domicile, by which I mean the personal status indicated by that word, — the onus, I say, lies upon those who assert that the personal status thus acquired, and continued from the time of his birth, was changed, to prove that that change took place. The law is, beyond all doubt, clear with regard to the domicile of birth, that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired. I do not think it will be necessary to examine the various defini- tions which have been given of the term "domicile." The question which I will ask your Lordships to consider in the present case is, in substance, this: Whether the appellant, before the 28th of Sep- tember, 1838, the day of the death of his wife, had determined to make, and had made, Scotland his home, with the intention of estab- lishing himself and his family there, and ending his days in that country? The onus, as 1 have said, is upon the respondents to establish this proposition. I will ask your Lordships, in the first place, to look at the facts subsequent to the return of the appellant to Scotland, as to which there is no dispute, then at the character of the parol evidence which has been adduced, and, finally, at a few passages in the correspond- ence which is in evidence. As regards the facts which are admitted, they amount to this: The appellant lived under the roof of Mrs. Hosack from the time of his arrival in Edinburgh, in the year 1837, until the 1st, of dune, 1838. He appears to have borne the whole, or the greater part of her house-keeping expenses during that time. He inquired for, and 148 BELL V. KENNEDY. [CHAP. 1|I. looked after, various estates, in the south of Scotland especially, and he indicated a preference for the estates of Blairston or Auchin- draiue, of Mollance, and of Enterkine. "With regard to Blairston or Auchindraine, it does not appear, so far as I can discover, to have been actually offered to him for sala With regard to Mollance, before he came to any determination as to it, it was sold to another person. "With regard to Enterkine, at the time we are speaking of, the 1st of June, 1838, a negotiation had been going on by letters written between the appellant and those who were proposing to sell the estate, but the offer which he ultimately made for it had at that time been refused, and, on the 1st of June, 1838, there was no pend- ing offer on his part for the property. Mrs. Bell, his wife, at this time was expecting her confinement. The house cf his mother-in- law, in which they were sojourning, was not sufficiently commodious for their wants, and the appellant took for one year a furnished house in Ayrshire, called Trochraigue. He took it with no inten- tion, apparently, of buying the estate, although it appears to have been for sale, but with the intention of living for a year in the house, and he hired servants for his accommodation. He removed to Trochraigue on the 1st of June, 1838, and, while so sojourning there, Mrs. Bell died in her confinement on the 28th of September in that year. It appears to me, beyond all doubt, that prior to this time the appellant had evinced a great and preponderating preference for Scotland as a place of residence. He felt and expressed a great desire to find an estate there with a residence upon it, with which he would be satisfied. His wife appears to have been even more anxious for this than he himself was; and her mother and their friends appear to have been eager for the appellant to settle in Scotland. There is no doubt that, since the death of his wife, he actually has bought the estate which I have mentioned, the estate of Enterkine, and that his domicile is now in Scotland. All that, in my opinion, would not be enough to effect the acquisition of a Scotch domicile. There was, indeed, a strong probability up to the time of the death of his wife that he would ultimately find in Scotland an estate to his liking, and that he would settle there. But it appears to me to be equally clear that if, in the course of his searches, a property more attractive or more eligible as an investment had been offered to him across the Border, he might, without any alteration or change in the intention which he expressed or entertained, have acquired and purchased such estate and settled upon it, and thus have acquired an English domicile. In point of fact, he made more or less of general inquiry after estates in England; and a circum- stance is told us by one of the witnesses, Mr. Telfer, which seems to me of great significance. Mr. Telfer says that his relations enter- tained great apprehension or dread that he would settle in England — a state of feeling on their part totally inconsistent with the notion SECT. I.] BELL V. KENNEDY. 140 that he had, to their knowledge, at that time determined ultimately and finally to settle in Scotland. These being the admitted facts, let me next turn to the character of the parol evidence in the case. As to the evidence of the mem- bers of the Hosaek family, and of the servants, very little is to be extracted from it in the shape of information upon which we can rely. They speak of what they considered and believed was the intention of the appellant; but as to anything he said or did, to which alone your Lordships could attend, they tell us nothing beyond what we have from the letters. As to the evidence of the appellant himself, I am disposed to agree very much with what was said at the bar, that it is to be accepted with very considerable reserve. An appellant has naturally, on an issue like the present, a very strong bias calculated to influence his mind, and he is, moreover, speaking of what was his intention some twenty-five years ago. I am bound, however, to say, and therein I concur with what was said by the Court of Session, that the evidence of the appellant appears to be fair and candid, and that certainly nothing is to be extracted from it which is favorable to the respondents as regards the onus of proof which they have to discharge. I will now ask your Lordships to look at what to my mind appears the most satisfactory part of the case, namely, the correspondence contemporaneous with the events in the years 1837 and 1, i. 384; Martini >■. Schliewinski, (Germany, OberhaDdelegericht), 18 Entsch. 863. — Ed. i Concurring opinions of the Lord Chancellor, Lord Chelmsford, and Lord Cui.dnsay are omitted. En. 156 UDNY V. UDNY.- [CHAP. II. legal states or conditions; one by virtue of which he "becomes the subject of some particular country, binding him by the time of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certaiu municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. Tbe political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. International law depends on rules which, being in great measure derived from the Roman law, are common to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is bom the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. This has been called tbe domicile of origin, and is involuntary. Other domiciles, including domicile by operation of law, as on marriage, are domiciles of choice. For as soon as an individual is sui juris it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile of choice; but as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicile of choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the cir- cumstances which create or constitute a domicile, and not a defini- tion of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular pur- pose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited SECT. I.] UDXY V. UDNY. 1' ' i period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicile is established. The domicile of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal; but it cannot be destroyed by the will and act of the party. Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner. Expressions are found in some books, and in one or two cases, that the first or existing domicile remains until another is acquired. This is true if applied to the domicile of origin, but cannot be true if such general words were intended (which is not probable) to convey the conclusion that a domicile of choice, though unequivocally relinquished and aban- doned, clings, in despite of his will and acts, to the party, until another domicile has animo et facto been acquired. The cases to which I have referred are, in my opinion, met and controlled by other decisions. A natural-born Englishman may, if he domiciles himself in Holland, acquire and have the status civilis of a Dutch- man, which is of course ascribed to him in respect of his settled abode in the land, but if he breaks up his establishment, sells his house and furniture, discharges his servants, and quits Holland, declaring that he will never return to it again, and taking with him his wife and children, for the purpose of travelling in Erance or Italy in search of another place of residence, is it meant to be said that he carries his Dutch domicile, that is, his Dutch citizenship, at his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be absurd; but there is no absurdity and, on the contrary, much reason, in holding that an acquired domicile may be effectual ly abandoned by unequivocal intention and act; and that when it is so determined the domicile of origin revives until a new domicile of choice be acquired. According to the dicta in the books and cases referred to, if the Englishman whose case we have been supposing lived for twenty years after he had finally quitted Holland, without acquiring a new domicile, and afterwards died intestate, his personal estate would be administered according to the law of Holland, and not according to that of his native country. This is an irrational conse- quence of the supposed rule. But when a proposition supposed to be au- thorized by one or more decisions involves absurd results, there is great l'eason for .believing that no such rale was intended to be laid down. In Mr. Justice Story's Conflict of Laws (the last edition) it is stated that "the moment the foreign domicile (that is, the domicile of choice) is abandoned, the native domicile or domicile of origin is re-acquired." And such appears to be the just conclusion from several decided cases, as well as from the principles of the law of domicile. 158 TJDNY V. UDNY. [CHAP. II. In adverting to Mr. Justice Story's work, I am obliged to dissent from a conclusion stated in the last edition of that useful book, and which is thus expressed, "The result of the more recent English cases seems to be, that for a change of national domicile there must be a definite and effectual change of nationality." In support of this proposition the editor refers to some words which appear to have fallen from a noble and learned lord in addressing this House in the case of Moorhouse v. Lord, 10 H. L. C. 272, when in speaking of the acquisition of a French domicile, Lord Kingsdown says, "A man must intend to become a Frenchman instead of an Englishman." These words are likely to mislead, if they were intended to signify that for a change of domicile there must be a change of nationality, that is, of natural allegiance. That would be to confound the political and civil states of an indi- vidual, and to destroy the difference between patria and domicilium. The application of these general rules to the circumstances of the present case is very simple. I concur with my noble and learned friend that the father of Colonel Udny, the consul at Leghorn, and afterwards at Venice, and again at Leghorn, did not by his residence there in that capacity lose his Scotch domicile. Colonel Udny was, therefore, a Scotchman by birth. But I am certainly inclined to think that when Colonel Udny married, and (to use the ordinary phrase) settled in life and took a long lease of a house in Grosvenor Street, and made that a place of abode of himself and his wife and children, becoming, in point of fact, subject to the municipal duties of a resident in that locality; and when he had remained there for a period, I think, of thirty-two years, there being no obstacle in point of fortune, occupation, or duty, to his going to reside in his native country; under these circumstances, I should come to the conclusion, if it were necessary to decide the point, that Colonel Udny deliber- ately chose and acquired an English domicile. But if he did so, he as certainly relinquished that English domicile in the most effectual way by selling or surrendering the lease of his house, selling his furniture, discharging his servants, and leaving London in a manner which removes all doubt of his ever intending to return there for the purpose of residence. If, therefore, he acquired an English domicile he abandoned it absolutely animo et facto. Its acquisition being a thing of choice, it was equally put an end to by choice. He lost it the moment he set foot on the steamer to go to Boulogne, and at the same time his domicile of origin revived. The rest is plain. The marriage and the consequences of that marriage must be determined by the law of Scotland, the country of his domicile. 1 1 Ace. Reed's Appeal, 71 Pa. 378 (semble) ; Allen v. Thomason, 11 Humph. 536. Contra, Munroe v. Douglas, 5 Madd. 379 ; First Nat. Bank v. Balcom, 35 Conn. 351; Succession of Steers, 47 La. Ann. 1551, 18 So. 503; Harvard College v. Gore, 5 Pick 370 (semble). — Ed. SECT. I.] IN RE TOOTAL'S TRUSTS. 159 In re TOOTAL'S TRUSTS. High Court of Justice, Chancery Division. 1883. [Reported 23 Chancery Division, 532.] Chitty, J. The question raised by this petition is whether the per- sonal estate of the testator, J. B. Tootal, is liable to legacy duty. The testator's will was proved in Her Majesty's Supreme Court for China and Japan at Shanghai, and has not been proved in England. No part of his personal estate was locally situate in England at the time of his death, and it is admitted on the part of the Crown that probate in England is not required. In consequence of the claim made by the Crown for legacy duty the executors, who are also trustees of the will, have paid the funds representing the residuary personal estate into court under the Trustee Relief Act. And the petition is presented by some of the residuaiy legatees, or persons claiming under them, asking for a declaration that the testator was domiciled at Shanghai at the time of his death, and consequently that no legacy duty is payable, and for a distribution of the fund on that footing. The liabilit} - of the personal estate of a testator or intestate to legacy duty under the statutes in question depends on his domicile at his death ; if his domicile is in Great Britain the duty is payable, if his domicile is out of Great Britain no duty is payable. That his personal estate may happen to be locally situate in Great Britain, or that the funds may be transmitted to Great Britain for the purpose of being paid to the legatees, are immaterial circumstances. The broad princi- ple that the liability depends on domicile was established by the House of Lords in Thomson v. Advocate-General, 12 CI. & F. 1. The earlier decisions in conflict with that principle were overruled by that case. The previous decision of the House of Lords in Attorney-General v. Forbes, 2 CI. & F. 48, does not, when explained, conflict with Thomson v. Advocate-General. As was pointed out by Lord Wensleydale in Attorney-General v. Napier, 6 Ex. 217, the case of Attorney-General v. Forbes proceeded upon the assumption (which so far as the facts are stated in the reports was erroneous) that the domicile was in India, and it must be treated as a case of domicile in India. The first and prin- cipal question then is where the testator was domiciled at the time of his death. It is admitted that his domicile of origin was in England. The bur- den of proof that he had acquired a new domicile of choice therefore rests on the petitioners. The facts are not in dispute. After some previous changes of resi- dence, which it is unnecessary to trace, the testator in 1862 went to reside at Shanghai in the Empire of China, and, with the exception of some visits to England in 1864 and 1*7:; for health and business, he continued to reside at Shanghai till his death, which occurred in 1878 160 IN RE tootal's trusts. [chap. II. During his residence there he very extensively engaged in business in connection with newspapers, being the manager and part proprietor of the " North China Herald " and the " North China Daily News" and other publications and periodicals, all of which were published at Shanghai, and he was also a partner in a printing business there. Evidence has been adduced on the part of the petitioners showing that for some years before his death he had determined to reside per- manently at Shanghai, and had relinquished all intention of ever returning to England, and that he had in fact on several occasions expressed his intention of not returning to England. This evidence remains uncontradicted on the part of the Crown. In his will he describes himself as of Shanghai in the Empire of China. In these circumstances it was admitted by the petitioners' counsel that they could not contend that the testator's domicile was Chinese. This ad mission was rightly made. The difference between the religion, laws, manners, and customs of the Chinese and of Englishmen is so great as to raise every presumption against such a domicile, and brings the case within the principles laid down by Lord Stowell in his celebrated judgment in The Indian Chief, 3 Rob. Adm. 29, and by Dr. Lushing- ton in Maltass v. Maltass, 1 Rob. Ecc. 67, 80, 81. But it is contended on the part of the petitioners that the testator's domicile was what their counsel termed " Anglo-Chinese," a term in- geniously invented in analogy to the term " Anglo-Indian." To make this contention intelligible it is necessary to state some further facts. Under the treaties between Her Majesty and the Em- peror of China of 1842, 1843, and 1858, British subjects with their families and their establishments are allowed to reside for the purpose of carrying on their mercantile pursuits without molestation at Shang- hai and certain other cities, and to establish warehouses, churches, hospitals, and burial grounds. By the 15th clause of the treaty of 1858 it is stipulated that all questions in regard to rights of property or person arising between British subjects shall be subject to the juris- diction of the British authorities. By the same treaty provision is made for the settlement of disputes between British subjects and Chinese by the joint action of the British consul and the Chinese authorities, and also for the Chinese authorities themselves affording protection to the persons and properties of British subjects. The treaties do not contain any cession of territory so far as relates to Shanghai, and the effect of them is to confer in favor of British subjects special exemptions from the ordinary territorial jurisdiction of the Emperor of China, and to permit them to enjoy their own laws at the specified places. Similar treaties exist in favor of other European governments and the United States. By virtue of these treaties and of the statutes 6 & 7 Vict. c. 80 and c. 94, the Crown has, by the Order in Council of the 9th of March, 1865, constituted a Supreme Court at Shanghai. The first of these statutes, intituled " An Act for the better gov SECT. I.] IX RE TOOTAL'S TRUSTS. 161 eminent of Her Majesty's subjects resorting to China," enables Her Majesty by order in council to ordain tk for the government of her subjects within the dominion of the Emperor of China, or being within any ship or vessel at a distance of not more than one hundred miles from the coast of China," any law or ordinance as effectually as any such law or ordinance could be made by Her Majesty in council for the government of her subjects within Hong Kong which had been ceded to Her Majesty. The second of the statutes, commonly known as the Foreign Jurisdiction Act, after reciting that by treaty, capitula- tion, grant, usage, sufferance, and other lawful means, Her Majesty had power and jurisdiction within divers countries and places out of her dominions, and that doubts had arisen how far the exercise of such powers and jurisdiction was controlled by and dependent on the laws and customs of the realm, enacts that Her Majesty may exercise any power or jurisdiction which she then had, or at any time thereafter might have, within any country or place out of her dominions in as ample a manner as if she had acquired such power or jurisdiction by the cession or conquest of territory. The order in council by which the Supreme Court was established, provides that all Her Majesty's jurisdiction exercisable in China for the judicial hearing and determina- tion of matters in difference between British subjects or between for- eigners and British subjects, or for the administration or control of the property or persons of British subjects, shall be exercised under or according to the provisions of the order and not otherwise. It further provides that subject to the provisions of the order the civil jurisdic- tion shall, as far as circumstances admit, be exercised upon the prin- ciples of and in conformity with the common law, the rules of equity, the statute law, and other law for the time being in force in and for England. The Supreme Court is a court of law and equity, and a court for matrimonial causes, but without jurisdiction as to dissolution or nullity or jactitation of marriage. It is a court of probate, and as such "as far as circumstances admit" has for and within China, with respect to the property of British subjects having at the time of death "their fixed places of abode in China," all such jurisdiction as for the time being belongs to the Court of Probate in Hi gland. It has jurisdiction for the safe custody of the property of British subjects not having at the time of death their fixed abode in China or Japan. The exceptions from the jurisdiction of the ccurt as a matrimo- nial court in regard to dissolution, nullity, or jactitation of marriage are important, and the effect of them is apparently to leave English men subject to the jurisdiction of the court for matrimonial causes in England in respect of the excepted matters. Upon these facts it is contended for the petitioners that there exists at the foreign port of Shanghai an organized community of British subjects independent of Chinese law and exempt from Chinese jurisdiction, and not amenable to the ordinary tribunals of this coun- 162 IN KE tootal's trusts. [chap. n. try, but bound together by law which is English law, no doubt, but English law with this difference, that the English revenue laws do not form part of it, and that by residence and choice the testator became a member of this community, and as such acquired an Anglo-Chinese domicile. The authorities cited in support of this contention for an Anglo- Chinese domicile relate to the Anglo-Indian domicile of persons in the covenanted service of the East India Company. These authori- ties are generally admitted to be anomalous. Dicey on Domicile, pp. 140, 141, 337. They are explained by Lord Hatherley in his judg ment in Forbes v. Forbes, Kay, 341, and by Lord Justice Turner in Jopp v. Wood, 4 D. J. & S. 616. The point that the animus manendi was inferred in law from the obligation to serve in India as stated by Lord Hatherley, has no bearing on the case before me, in which the evidence is sufficient for general purposes to establish the animus manendi. But the observations of Lord Justice Turner that the East India Company was regarded as a foreign government are material. He says, Ibid. 623: "At the time when those cases [on Anglo-Indian domicile] were decided, the government of the East Indian Company was in a great degree, if not wholly, a separate and independent gov- ernment foreign to the government of this country, and it may well have been thought that persons who had contracted obligations with such government for service abroad could not reasonably be consid- ered to have intended to retain their domicile here. They, in fact, became as much estranged from this country as if they had become servants of a foreign government." Lord Stowell in his judgment in the Indian Chief shows that in his time the sovereignty of the Great Mogul over the British territo- ries in India was merely nominal, being, as he says, occasionally brought forward for purposes of policy, and that the actual authority of government over these territories was exercised with full effect by this country, and the East India Company, a creature of this country. His observation as to the authority of government being exercised by this country is not really inconsistent with the passage above cited from Lord Justice Turner's judgment. Lord Stowell was not address- ing himself to the particular point for which I have quoted Lord Jus- tice Turner's judgment. Although the government of British India was English, being carried on principally by the agency of the char- tered company, it was for all practical purposes a distinct govern- ment from that of Great Britain, and in that sense it was, as Lord Justice Turner says, regarded as a foreign government. At Shanghai there is a British consul, residing there by virtue of the treaties, but there is no government by British authority existing there, and there is nothing which can be regarded as a separate or independent government, and the analogy which the petitioners seek to establish with an Anglo-Indian domicile is not made out. On principle, then, can an Anglo-Chinese domicile be established^ The British community at Shanghai, such as it is, resides on foreign SECT. I.] IN RE TOOTAL'S TRUSTS. 16 o territory; it is not a British colony, nor even a Crown colony, al- though by the statutes above referred to the Crown has as between itself and its own subjects there a jurisdiction similar to that exer- cised in conquered or ceded territory. Residence in a territory or country is an essential part of the legal idea of domicile. Domicile of choice, says Lord Westbury in Udny y. Udny, Law Rep. 1 II. L., Sc. 458, is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the intention of continuing to reside there for an unlimited time. He speaks of resi- dence in a particular place, and not of a man attaching himself to a particular community resident in the place. In Bell v. Kennedy, Law Rep. 1 H. L., Sc. 320, he uses similar expressions. Domicile is an idea of the law; "it is the relation which the law creates between an individual and a particular locality or country." He refers to locality or country and not to a particular society subsisting in the locality or country. The difference of law, religion, habits, and customs of the governing community may, as I have already pointed out, be such as to raise a strong presumption against the individual becoming domi- ciled in a particular country ; but there is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power. There may be, and indeed are, numerous examples of particular sects or communities residing within a territory governed by particular laws applicable to them spe- cially. British India affords a familiar illustration of this proposition., But the special laws applicable to sects or communities are not laws of their own enactment, they are merely parts of the law of the governing community or supreme power. It ma}* well be that a Hindoo or Mussulman settling in British India, and attaching himself to his own religious sect there, would acquire an Anglo-Indian domicile, and by virtue of such domicile would enjoy the civil status as to marriage, inheritance, and the like accorded by the laws of British India to Hindoos or Mussulmans, and such civil status would differ materially from that of a European settling there and attaching himself to the British community. But the civil status of the Hindoo, the Mussulman, and the European would in each case be regulated by the law of the supreme territorial power. In the case before me the contention is for a domicile which may not improperly be termed extraterritorial. The sovereignty over the soil at Shanghai remains vested in the Emperor of China with this exception, that he has by treaty hound himself to permit British sub- jects to reside at the place for the purposes of commerce onby, without interference on his part, and to permit the British Crown to exercise jurisdiction there over its own subjects, but over no other persons. According to the petitioner's argument the subjects or citizens of all the foreign stnlcs who enjoy similar treaty privileges would (subject to any particular exceptions arising from the law of their own country in 164 IN RE tootal's trusts. [chap. II. relation to domicile), acquire under circumstances similar to those in the present case a new domicile of choice. If, for instance, a citizen of the United States were to reside at Shanghai with the intention of remaining there permanently, but not under such circumstances as would be sufficient to rebut the strong presumption against a Chinese domicile, and were to attach himself so far as he could to one of the European communities there, say-, for an instance, the British com- munity, he would, according to the petitioner's contention, have lo9t his domicile of origin, and would have acquired an Anglo-Chinese domicile, which for most practical purposes would be equivalent to an English domicile. In my opinion he would not acquire such a domicile. It appears to me that there is no substantial difference as to the question I am considering between the residence of a British subject at Shanghai, or at any factory in Turke}' or elsewhere, or the East, whether by virtue of special treaties, capitulations, sufferance, or the like. But such factories are not regarded as colonies or foreign coun- tries for the purpose of domicile. There may be commercial domicile there in times of war with reference to the law of capture, but that is altoo;ether a different matter. No authority except those relating to Anglo-Indian domicile has been cited in support of the petitioner's contention as to domicile. In Maltass v. Maltass, 1 Rob. Ecc. 80, already cited, Dr. Lushington admitted to probate the will, valid according to the law of England, of an English merchant resident at a British factory at Smyrna. He held that if the treaty between England and the Porte was applicable to British merchants resident or domiciled in the ordinary acceptation of the term in Smyrna, the provisions of the treaty decided what was to be done in the case of succession to personal estate, namely, that it was to follow the law of England. But he considered that the deceased was domiciled not in a colony, but in England. In the argument for the petitioners great reliance was placed on the nature and extent of the jurisdiction of the court at Shanghai, and the fact that the will has not been proved in England. The law admin- istered by the court at Shanghai, being for most practical purposes the same as that administered in England, the question of domicile is likely to arise only in exceptional cases like the present. The juris- diction conferred on the Supreme Court at Shanghai is merely the jurisdiction of Her Majesty exercisable in China, and confined to British subjects. It is not exclusive and does not oust the jurisdiction of Her Majesty's courts in England. No solid reason exists that I can discover for holding that the will of an Englishman " whose fixed place of abode " was at his death in China, could not be admitted to probate by the Court of Probate in England. I may observe that the term "• fixed place of abode " is not equivalent to domicile. The technical term "domicile " was, it appears to me, purposely avoided. The only distinction between this case and Maltass v. Maltass, 1 Rob. Ecc. 67, is the existence at Shanghai of an English Court of Probate. Similar SECT. I.] IN RE TOOTAL'S TRUSTS. 165 courts now exist in the Ottoman dominions and in Egypt. In fact ali these courts are consular courts, or constituted on the same mode) with more or less jurisdiction. In the case of Attorney-General v. Napier, 6 Ex. 217, letters of administration had been granted by the courts established in India, where nearly the whole of the intestate's personal estate was locally situate at his death. In order to recover a comparatively small debt in England, administration was taken out in this country also. The intestate's domicile was in England. But in deciding that legacy duty was payable, the Court of Exchequer proceeded solely on the domicile, and did not even advert in the judgment to the grant of administration in England. Evidently that fact, as well as the fact that the Indian court had jurisdiction to grant and had granted administration, were considered immaterial. If an Englishman domiciled in England dies resident abroad, and no part of his assets are in England, and no probate or letters of administration are taken out in England, there may be great difficulty in asserting the Crown's right to duty, and inasmuch as foreign courts will not enforce the revenue laws of this country the difficulty may in some cases be insuperable. But the Crown's right cannot depend on the greater or less difficulty in pursuing the remedy. In the case before me there is no difficulty in giving the remedy, since the fund is in court, and under the Legacy Duty Acts this court or its officers are bound to see that the legacy duty, if payable, is paid before the fund is parted with. The circumstance that the will has not been proved here is also immaterial. It has been proved in a duly constituted British court of competent jurisdiction, and, it being admitted that further probate here is not required, it follows that the court must look at the Shang- hai probate before distributing the fund. This disposes of the argu- ment that the court cannot take notice of an alleged will of personal estate, unless it has been proved in this country. The argument which was addressed to me, founded on a close examination of the various pro- visions of the Legacy Duty Acts, for the purpose of showing that they do not apply in the circumstances of this case, was substantially the same as that urged in tlte House of Lords in Attorney-General v. Forbes, 2 CI. & F. 48, and is disposed of by the decisions in Thomson v. Advocate-General, 12 CI. & F. 1, and in Attorney-General v. Forbes, as explained by the Court of Exchequer in Attorney-General v. Napier, 6 Ex. 217. For these reasons I hold that there is no such thing known to the law as an Anglo-Chinese domicile, that the testator's domicile remained English, and that the circumstances are not sufficient to create any exception from the broad principle that legacy duty is payable when the domicile is British. Consequently I think that the duty is payable ' 1 Approved, AM-nl-Messili v. Farra, 18 App. Cos. 481 (1888). The residence re- lied upon to establish domicile in thai case was at Cairo, as a protected British sub- 166 IX EE CRAIGNISH. [CHAP. II. Ix re CRAIGNISH. High Court of Justice : Court of Appeal. 1892. [Reported [1892] 3 Chancery, 180.] Chitty. J. 1 The plaintiff claims to be entitled beneficially to one- half of the property which passed under the will of his late wife. . . . He bases his claim on two grounds, — first, he alleges that during the marriage his own domicile, and consequently his wife's domicile, was Scotch : and, secondly, that according to the law of Scotland he is entitled beneficially to one-half of the £20.000 which she appointed, and one-half of her residuary estate. ... In order to establish that his own domicile was Scotch, the plaintiff gave evidence as to the domicile of his great-grandfather and his grandfather. When this evidence, chiefly documentary, had been put in, it was admitted by the defendants' coun- sel that the plaintiff had proved that the domicile of both these ancestors was and continued until their deaths to be Scotch ; consequently, the plaintiff's father, being the legitimate son of a man domiciled in Scot- land, had at his birth a Scotch domicile. The contest then starts from this point. In the course of it many questions were raised, some of law, and some of fact, including the just inferences to be drawn from the facts proved. In view of the conclusion at which I have arrived on the facts subsequent to the plaintiff's marriage with Miss Meeking, I shall pass by many of the questions that were raised; I shall begin with a short statement of the facts from the plaintiff's birth down to that marriage. He was born on the 24th of December, 1836, at Sydney, in New South Wales. His father was then an officer in the 21st Regiment, serving with his regiment stationed there. His father and mother had married in that colony in 1834. His mother was the daughter of Sir Alexander Macleay, Speaker to the Legislative Council at Sydnev. On the loth of December, 1837, the plaintiff's father retired from the army b}' sale of his commission. He remained in the colony for some few years afterwards. He became police magistrate at Parramatta. and subsequently, about 1838 or 1839, Colonial Treasurer. He gave up his appointment and left the colony about 1841. In that 3 - ear he arrived in England with his wife and family, including the plaintiff. He sub- sequently visited Scotland, and. after a short stay in Manchester, he came with his wife and family to London in 1846, and continued to reside there until his death. In August, 1846, he was appointed secre- tary to the London and South-Western Railway Company. The salary was considerable and sufficient for the support of his family and himself. He became a member of the Junior United Service Club. In February, ject. The Court said: " Residence in a foreign state, as a privileged member of an ex-territorial community, although it may be effectual to destroy a residential domicile acquired elsewhere, is ineffectual to create a new domicile of choice." — Ed. 1 The opinion only is given : it sufficiently states the case. Only so much of the opinion as deals with the question of domicile is given. — Ed. SECT. I.] IN EE CRAIGNISH. 167 1848, he purchased 62, Chester Square, for the remainder of a long lease, and went to reside there with his wife and family, and he con- tinued to reside there with them until his death, which occurred on the 4th of October, 1848. Being in ill-health he had resigned his office of secre- tary in the previous September. lie made his will on the 28th of that month, describing himself as of 02, Chester Square, in the county of Middlesex. The residue of his property remaining after payment of his debts amounted only to a few hundred pounds, which he bequeathed to his wife. He had lost his money by the failure of the Western Bank of Australia, as he learnt on his arrival in England in 1841. Upon these facts it was argued for the defendants, — first, that the plaintiff's father was at the time of the plaintiff's birth domiciled in New South Wales, and consequently that the plaintiff's domicile of birth was in that country ; and, secondly, that if the plaintiff's father was not then domiciled in New South Wales, he was domiciled in England at the time of his death, and thereupon it was argued for the defendants, as a proposition of law, that domicile of origin, rightly understood, does not mean domicile at birth ; but the last domicile imposed by the choice of the father, or other the guardian of an infant, who has authority to change the domicile of an infant by changing his own. This proposition of law was also raised in reference to certain facts (which I have not noticed) relating to the plaintiff's father while under age. It was urged that great inconvenience and hardship would arise by holding that domicile of origin meant simply domicile at birth, and a case was put by wav of illustration. Suppose, it was said, that at the time of the birth of his child an Englishman is domiciled in France, that shortly after- wards, say within three months of the birth of the child, the father breaks up his home in France and returns to England, his own domicile of origin, and continues to live settled there until the child comes of age it was urged that it would be a great hardship on this English child to hold that throughout the rest of his life there was clinging to him a French domicile ready to arise whenever he abandoned the Eng- lish domicile, or any subsequent domicile acquired by his own choice. But this case can be met by a parallel counter-case. Suppose an Eng- lishman domiciled in England at his child's birth retains his English domicile until say within three months of the child's coming of age, and then breaks up his English home and acquires a domicile in France, which he retains until the child comes of age — according to the argu- ment for the defendants the domicile of origin of this English child would be French. But inasmuch as I intend to decide this case on the assump- tion that the plaintiff's domicile of origin was Scotch, I pass by these questions of fact and law without expressing any opinion upon them, except by saying, as to the defendants' proposition of law, that I am not persuaded that it is well founded, or that it can be supported upon a due examination of the authorities bearing on the subject. The plaintiff was in his twelfth year at his father's death. lie was Rdncated for the military service, chiefly in England, but partly in Ger- 168 IN RE CRAIGNISH. [CHAP. II. man}', where his mother was residing. He obtained a military cadetship in the service of the East India Company, went out to India, and was appointed in 1854 to the 7th Bombay Native Infantry, one of the com- pany's regiments. He remained in the company's service until the government of India was transferred to the Crown by the act passed in 1858. He then became a military officer under the Crown. In 1869 he finally left India, and in 1871 he retired from military service on a pension. From 1854 to 1869 he was constantly in active service. He served in the Persian and other wars, and in the Mutiny he was an officer in Jacob's Horse. On his quitting India finally in 1869, he abandoned the Anglo-Indian domicile which he had acquired ; thereupon his domicile of origin, which I assume to be Scotch, revived, and this domicile continued unless and until he acquired a new domicile by choice. The burden of proving that he acquired a new domicile by choice is upon the defendants. From 1869 to 1883 his career may be briefly stated. During this period London seems to have been his headquarters. From London he generally started, and to London he generally returned on and after his numerous expeditions. He was continually moving from place to place. Down to 1877 his movements were principally in the direction where there was war or rumor of war. He was the mili- tary correspondent of a leading London newspaper — the " Standard " — during the Franco-German War ; afterwards he was roving corre- spondent for that newspaper. He was called back to England by the " Standard," and acted as military correspondent for that paper at the manoeuvres on Salisbury Plain in 1872. He was present in the Spanish War in 1873, as correspondent for an English newspaper called the " Hour," which had but a brief existence. I pass by the disturbances in Bosnia and Herzegovina in 1875, the Servian War in 1876, the Turkish War in 1877, and the siege of Batoum in the same year, in all of which he played some part, or had some concern. After 1877 his expeditions in connection with war appear to have ceased. In 1878 he was at Milan and Paris, and then he came to London ; and thence he went on a visit to Scotland and Ireland. In May, 1879, he was divorced from his first wife at her suit by the decree of the High Court in Lon- don, made absolute in the following December. He had married her in 1862 while in India. In 1879 he was living on the banks of the river Thames, not far from London. In 1881 he travelled to Sydney, his birthplace, and returned to London about the end of that year. In 1882 he received from the Duke of Saxe-Coburg-Gotha the dignity of Baron von Craignish, and in 1883 he obtained the royal license to use that title in this country. It is said, however, that his claim to use the title is not recognized in Scotland. The selection of Craignish for his title has apparently given great offence to an elder branch of the Camp- bell family in Scotland. The estate of Craignish in Scotland has passed away from the Campbells. The plaintiff is not a Campbell of Craignish. His family is Campbell of Laggan Lochan. Neither the plaintiff nor his father ever held any land in Scotland. I have mentioned this circum- SECT. I.] IN RE CRAIGNISH. 169 9tance as to the grant of the dignity by a foreign prince because the plaintiffs counsel placed some reliance on it ; but it appears to me to have no bearing on the question of domicile. I now come to the critical period which extends from his marriage with Miss Meeking until her death. The marriage took place at the British Embassy in Paris on the 26th of March, 1883. He was then in his forty-seventh year — a time of life when a man is less disposed to rove and more inclined to settle down, particularly when he has mar- ried a rich wife. He is described in the marriage certificate as " of the parish of Sydney, in the county of New South Wales, then residing at Pan's Hotel, Brighton," and she is described as " of the parish of St. Andrew's, Holborn, in the county of Middlesex." They seem to have started from London for the marriage in Paris. After the marriage they went on a trip to Nice, and from Nice they returned to London. There they stayed at Fisher's Hotel, Clitford Street. That was in the middle of 1883. He bought a yacht at Cowes, which his wife paid for and presented to him. The yacht was, and continued to be, stationed at Cowes. His property consisted of his pension and some articles of ornament or the like, which he had apparently collected in his wander- ings. He had no other property except the yacht. During the yacht- ing seasons of the years 1883, 1884, and 1885, the yacht was used by him, sometimes with and sometimes without his wife, for various trips to Scotland, the Mediterranean, and the Baltic. During the same period they made visits to the Riviera, Paris, and Boulogne, Germam', and the New Forest in England, generally, but not always, together. There was some little confusion in the plaintiff's evidence as to the dates and order of these trips and visits ; but the exact dates and order are not material. During this period the plaintiff and his wife were frequently in London, staying at hotels and furnished rooms. What- ever expeditions they made, the plaintiff and his wife (as he stated in his evidence) always came back to London. On the 4th of January, 1886, the plaintiff signed an agreement for taking No. 25, Albert Gate, on a tenancy commencing on the 15th of that month. He entered into possession accordingly, and resided there with his wife until their separation, which took place in June or .Inly following. The plaintiff, in his evidence, seemed desirous of ascribing the taking of this house solely to his wife; he had apparently forgotten that he had himself signed the agreement, and that in a letter written by him to her after the separation, dated Piccadilly, he had spoken of the house emphatically as "my house." The taking of this house way his own act, even if he took it at the request of his wife. The hous< was taken with the furniture therein. His wife had furniture stored at a repository; some of this was removed to the house, but the bulk remained at the repository. Tin' articles which belonged to him were removed to the house. In the agreement he is described as of the Junior United Service Club, S. W. The rent was £500 a year, and the term was for a year certain, with an option to the plaintiff 170 IN RE CKAIGNISH. [CHAP. II. to continue the tenancy for another year, and if the house was not required by the landlord, then for a further term. Some time after the separation of the plaintiff and his wife this house was given up. After their separation they never lived together again. There were protracted negotiations carried on by their solicitors for a deed of separation. They were broken off before her death, because the plaintiff would not accept the conditions on which it was proposed on her part that an annuity should be settled on him. Her proposal was that the annuity should be a personal provision for hie mainte- nance, and therefore determinable on bankruptcy or alienation; the plaintiff required that the annuity should be free of all restrictions, so that he could deal with it and raise money upon it. These negotia- tions were conducted throughout on the footing or tacit assumption that the law applicable to the relation of the parties was the law of England. The draft which passed between the solicitors was in English formj no suggestion was made from beginning to end by or on behalf of the plaintiff of a Scotch domicile, or that the law of Scotland had any bearing on the rights of the plaintiff and his wife. But, in justice to the plaintiff, it is proper to add that he was not designedly suppressing or keeping back any claim. He was not aware that he had any before the memorable conversation with his barrister friend after his wife's death. Still, the circumstance that these negotiations were conducted on the footing or assumption that the law of England applied has some bearing on the question of domi- cile. The object of the law in searching for and ascertaining a man's domicile is to ascertain the particular municipal law by which his private rights are regulated and defined. The circumstance that a foreigner residing in England by his conduct adopts the law of Eng- land as the law whereby his private rights are defined is relevant evi- dence on the question of his domicile. Doucet v. Geoghegan, 9 Ch. D. 441. The assumption in these negotiations, that the relative rights of the plaintiff and his wife were governed by the law of England, falls far short of an intentional adoption of that law, and if it stood alone it would be of trifling import, but, taken in connection with the other circumstances of the case, it is not altogether without weight. A few more facts remain to be noticed. The plaintiff was during the marriage a member of three clubs in London, — the Junior United Service Club, the Royal Thames Yacht Club, and the Raleigh. Shortly after his wife's death he became a member of the Arts and Letters Club, also in London. His wife was a member of the Albe- marle Club in London. He never had a club in Scotland. After the separation he continued to reside chiefly in London. He had lodg- ings or furnished apartments in Suffolk Street, in Bedford Gardens, Kensington (where he stayed about a year), in Vauxhall Bridge Road, and in Cheniston Gardens, where he was when his wife died. He had a studio in Cheniston Gardens. He made a short expedition to Cairo, and he went round Scotland in the Norham Castle, accompany- SECT - !•] IN RE CRAIGNISH. 17] ing the ocean yacht race of 1887 as one of the Thairfes Yacht Clnb committee. This was the only visit, if it can be called a visit, which he paid to Scotland after the separation. In order to show that his domicile was Scotch, or, at all events, that it was not Eng- lish, the plaintiff gave in evidence conversations which he had with his wife concerning Craiguish. All these conversations occurred before he took No. 25, Albert Gate. The final conversation was at Fisher's Hotel, London. The plaintiff said his wife often talked to him about the possibility of his being able to buy Craignish. A friend had made inquiries and reported the result. The owner evi- dently did not intend to part with it at any price. He put a fancy price upon it; according to the plaintiff's recollection it was £80,000. To use the plaintiff's own expression, "That settled the matter of Craignish." It put an end to all ideas of his wife buying it. He never had any idea of purchasing it himself; as he truly stated, he had no money. It never really was within the range of practicability that even his wife should buy it. The £65,000 was so tied up that she could not dispose of any part of the capital during her life. She had a legacy of some thousand pounds under her father's will, but there was no evidence to show how much of this remained in her hands at the marriage. That a man with Scottish blood in his veins should have dreams of Scotland and an ancestral estate there is natural enough. This was but a waking dream, and the dream, such as it was, was the dream of his wife, and not of himself. A dream or a mere hope or a wish for the impossible is not an intention. There was no intention to buy Craignish. Whatever idea there was on the subject, it had finally vanished before the plaintiff took the house at Albert Gate. The plaintiff gave also some evidence as to his wife's making inquiries in regard to some other places in Scot- land on their visits to that country, but nothing came of these inqui- ries, and these matters all came to an end before the house at Albert Gate was taken. There is one peculiarity in this case which does not often arise in questions of domicile. Generally the inquiry relates to the domicile of a person who is dead. In this case the question relates to the domicile of the plaintiff, a living person. He gave evidence as to his past intention during his wife's life. Asked by his own counsel whether he formed any intention to make a settled home in England, he said, "No," and subsequently he said: "The only place I ever had ■•my serious intention of making a home, if I could, was Scotland." In cross-examination he liad admitted that there was no part of the United Kingdom where he had anything winch could be called a home but in London; thai any home he had was in London; and that certainly he had no other home but in London. As to the evidence of the plaintiff himself on the subjeel of his past intention, it must be accepted with a very considerable reserve. A plaintiff has naturally, on an issue like the present, a very strong bias cal- 172 IN KE CRAIGNISH. [CHAP. II. culated to influence his mind, and he is, moreover, speaking of his past intention, and not merely of past declarations of inten- tion. (See the observations of Lord Cairns in Bell v. Kennedy, Law Rep. 1 H. L., Sc. 307, 313.) Considerable light is thrown on the question whether the plaintiff did not himself consider that his home was in England by some of his own letters written to his wife after the separation. In these letters, written at various dates and from various places, the term "home" occurs seven times. I refrain from quoting at length the passages in the letters or the cross-examination upon them. They are, so far as they go, contemporaneous declara- tions of intention. The term "home" may be, and is, often used in different senses. An Englishman permanently settled in one of the English colonies may without impropriety speak of going home when he is paying a visit to England. If asked to explain himself, he would probabiy say that he used the term in reference to the mother country from which he and his brother colonists had emigrated or originally sprung, and that his own true home was in the colony. So in familiar conversation or in familiar letters the term may be used in a sense (varying more or less according to the accuracy of the speaker or writer from the ordinary popular sense) of the place where a man has his abode or is settled. When a traveller speaks of return- ing home he uses the term in the ordinary popular sense. In a letter of the plaintiff's (January 23, 1888), written from Corfu, where the plaintiff charges his wife with "breaking up our home," he was referring to their home at Albert Gate. This he admitted. In a passage in the same letter, where he asks "How can I go home?" he is referring to London, or at all events to England. In an undated letter from Alexandria, where the term "home " occurs three times, he uses it in the same sense of London or England. In the course of his examination-in-chief the plaintiff used the term "home" eight times, generally, however, following the lead of his counsel. When he is speaking of home before he finally quitted India, it is clear that he is using the term in the loose sense in which an Anglo-Indian may speak of this country as his home. After he left India, he uses it generally in reference to England as the place from which he started and to which he returned. I have surveyed the evidence at some length. In the result, and on the assumption that the plaintiff's domicile of origin was Scotch, I find that the plaintiff acquired by choice a domicile in England from the time when he went to reside with his wife in the house at Albert Gate, and that the domicile thus acquired was not afterwards aban- doned, but continued to the death of his wife. The evidence of the fact of residence here is amply sufficient. The true inference to be drawn from the evidence of the circumstances surrounding and accompanying the fact of the residence here, when taken in connection with the plaintiff's own letters and the other facts of the case viewed as a whole, appears to me to be that the plaintiff formed the intention SECT. I.] IN RE CRAIGNISH. 173 of residing beie indefinitely. There was the animus revertendi and manendi. According to Story's definition, that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom. Story's Conflict of Laws, sect. 43. There was no present intention on the plaintiff's part to remove from London. Loudon, which was at first merely his head- quarters, afterwards became his home; he treated it as his home, and called it his home, more particularly he considered the house at Albert Gate, where he lived with his wife, as his home. A man may be in fact homeless, but he cannot in law be without a domicile. Subject to this distinction the term "home," in its ordinary popular sense, is practically identical with the legal idea of domicile. Dicey on Domicile, pp. 42-55. Living in lodgings and changing the lodgings from time to time are circumstances to be taken into consid- eration on a question of domicile-, they are not inconsistent with domicile. There are many foreigners resident and domiciled in this country who pass their lives in lodgings only; a man may be domi- ciled in a country without having a fixed habitation in some particular spot in that country. The plaintiff's lodgings or apartments were all within the area of London. If (as I think was the case) the plaintiff's domicile was English in January, 1886, there is no sufficient evidence to show subsequent abandonment of that domicile. The subsequent breaking up of the house at Albert Gate is attributed by the plain- tiff to his wife; even if it were his own act it would not of itself constitute an abandonment of a home or domicile in England. For the period of two and a half years which elapsed between the separa- tion and his wife's death the plaintiff's principal place of residence was in London; he quitted London only for the temporary purpose of his short trips abroad. The plaintiff's counsel relied on the decision in In re Patience, 29 Ch. D. 976 On a question of fact a decision in a previous case affords little or no assistance. In that case I thought there was not sufficient evidence of intention. In this case I think there is. The action is dismissed with costs. The plaintiff appealed. Lindley, L. J., in delivering judgment, went through the facts of the case, and expressed the opinion that the plaintiff had not a Scotch domicile at the time of his wife's death. His Lordship accordingly held that the decision of Mr. Justice Chitty was right, and that the appeal must be dismissed with costs. Howen and Kay, L.JJ., concurred. 1 1'ollock, C. B., in Attorney-General v. Pottinger, 6 II. & N. 733,744(1861). The question is, whether Sir Henry Pottinger at the 1 Ace. Merrill v. Morrisett, 70 Ala. 438; Dalloz, Repert. vol. xvii. p. 396. Contra, In re Patience, 29 Ch. D 976. Cf. Dennare v. V. S., 93 U. S. 605. — Ed. 174 PUTNAM V. JOHNSON. [CHAP. II. time of his decease was domiciled in England or in India. . . . The only doubt arises from this, that he continued in the service of the East India Company, and might have been called upon at any time to serve in India. In Hodgson v. De Beauchesne, 12 Moo. P. C. 285, which was cited to establish that because an Indian officer con- tinued liable to be called upon to serve in India he could not acquire an English domicile, the court decided that such circumstances con- stituted a strong reason against such an officer acquiring a French domicile. But the distinction between a foreign and an English domi- cile is pointed out in the judgment, and Lord Cranworth in the course of Dr. Phillimore's reply, said : " If the deceased had gone to Scotland on furlough, and resided there as long as he did in France, it would be difficult to say that he had not acquired a Scotch domicile." Applying that to this case, I think that, notwithstanding Sir Henry Pottinger continued in the Indian arm}', his purchase of a dwelling-house in Eaton Place, his continuing to hold it whilst absent from England, his return to it as his place of residence and his home, and his reference to it in his will as his residence, abundantly establishes his English domicile. 1 PUTNAM v. JOHNSON. Supreme Judicial Court of Massachusetts. 1813. [Reported 10 Massachusetts, 488.] Case against the selectmen of Andover for refusing to insert plain- tiff's name on the voting-list of the town. 2 At the trial of the action, which was had upon the general issue before Sewall, J., at the Sit- tings here after this term, a verdict was found for the plaintiff, sub- ject to the opinion of the court upon certain facts agreed by the parties, and certain evidence given at the trial, and reported by the judge who presided thereat. It was admitted that the plaintiff was born in Danvers, on the 24th day of November, 1786; that he resided there, in his father's fam- ily, until he entered Dartmouth College, in August, 1805; that he was graduated at the said college in 1809; that he then went to Salem, and resided there as a student at law until the 13th of April, 1812, when he went to Andover; that he resided in Andover during the vacation of six weeks [in the theological seminary] in May and June, 1812, and of the vacation of six weeks in the autumn of that year he spent about half at his father's house in Danvers, and in visits to different places; that he did, on the first Monday of April, 1813, request the defendants to insert his name upon the list of f Arc. Mooari;. Harvey, 128 Mass. 219. In Hamilton v. Dallas, 1 Ch. D. 257 (1875), it was held that a British peer, though a member of the House of Lords, may acquire a domicile in France. — Ed. 2 This short statement is substituted for the declaration, given by the Reporter. — Ed. SECT. I.] TUTNAM V. JOHNSON. 175 voters in Andover, for senators; that they refused to insert it; that at the said meeting he offered his vote for senators, and the defend- ants refused to receive it; that he possessed sufficient personal estate; and that he was taxed in Salem in the years 1810 and 1811, and paid his taxes, and voted in said town after March, 1810, until he left that place in April, 1812. The judge also reported that Eleazar Putnam, the father of the plaintiff, testified that his son, since he left college, had received no support from him, or any assistance except in the way of credit to him, and was not of the father's family, but separated, and, as the father believed, was upon the charity foundation at Andover, and that he owned some real estate. Mark Newman, Esquire, testified that the plaintiff was upon the charity foundation in the theological seminary at Andover; that students in divinity on that foundation are restricted to a residence of three years before they are entitled to a license to preach, and are permitted to continue their residence there afterwards; that the residence of students is in chambers, as at a college, with board in commons; that he had not known of any students in the theological institution who had been admitted to vote, and that they had not taken any concern in town affairs ; that a Mr. Scammon, in 1812, while a student, claimed a right to vote, and was refused; and that theological students, when licensed to preach and employed as candidates for the ministry, reside and make their home at the institution, and in the vacations generally go from thence, but sometimes continue there. 1 Parker, J. The plaintiff, being a citizen of the commonwealth, more than twenty-one years of age, and of competent property, is without doubt entitled to vote somewhere within the State for State officers. By the facts reported in this case, it is manifest that Andover or Danvers is the place where the plaintiff has his home, within the true intent of the constitution. Although he was born in Danvers, and that is still the domicile of his father, yet he was of an age to eman- cipate himself, and obtain a home in some other town. He went to Andover, and had resided there a few days short of a year, previous to the election in April, 1813. A year's residence was not necessary to entitle him to vote in that town; it was sufficient that he made that his home. He had left his father's family several years before, and had become a resident in Salem, where he was taxed and per- mitted to vote. His father had ceased to support him since the year 1809, before which time he was also of age; and he was at Salem, preparing himself for an independent living, until the spring of 1812, when he removed to Andover, to pursue his theological studies there, which, as he was on the charitable foundation, required a resi- dence of three years. 1 Arguments of counsel arc omitted. — En. 176 PUTNAM V. JOHNSON. [CHAP. II. Was Andover, then, his dwelling-place or home? This is the question now to be solved. It is manifest that Danvers was not; for he had abandoned it, and did not keep up his connection with his father's family, as was the case of Emmons in Granby v. Amherst, 7 Mass. 1, cited in the argument. He could not vote in Danvers, for his home was not there. He must, then, have a right to vote in Andover, or be subjected to a temporary disfranchisement, in conse- quence of his having no home in any place. The objection most insisted on by the counsel for the defendants is, that the plaintiff did not go to Andover with an intention to remain there; but merely for the purpose of instruction, and there- fore that he could not exercise any of his civil privileges within that town; although it was admitted that a mechanic or day-laborer, otherwise qualified, making Andover his home, by residing and dwelling there, would be a legal voter there. A residence at a college or other seminary, for the purpose of instruction, would not confer a right, to vote in the town where such an institution exists, if the student had not severed himself from his father's control, but resorted to his house as a home, and continued under his direction and management. But such residence will give a right to vote to a citizen not under pupilage, notwithstanding it may not be his expectation to remain there forever. The definition of domicile, as cited from Vattel by the counsel for the defendants, is too strict, if taken literally, to govern in a ques- tion of this sort; and, if adopted here, might deprive a large portion of the citizens of their right of suffrage. He describes a person's domicile as the habitation fixed in any place, with an intention of always staying there. In this new and enterprising country, it is doubtful whether one half of the young men, at the time of their emancipation, fix themselves in any town with an intention of always staying there. They settle in a place by way of experiment, to see whether it will suit their views of business and advancement in life; and with an intention of removing to some more advantageous posi- tion if they should be disappointed. Nevertheless, they have their home in their chosen abode while they remain. Probably the mean- ing of Vattel is, that the habitation fixed in any place, without any present intention of removing therefrom, is the domicile. At least, this definition is better suited to the circumstances of this country. But several cases have been cited from our own reports, which are supposed to be analogous to the case at bar, in which the settlement of paupers has been decided upon more strict principles than are now suggested. The case of Granby v. Amherst is the strongest; and it is manifest that there is nothing, even in that case, which contradicts the principles now advanced. The pauper there left Belchertown and went to Dartmouth College, merely for the purpose of education. He was under age while at college, until a few months before be was graduated. He passed all his vacations in Belchertown, he had a SECT. I.] ABINGTON V. NORTH BRIDGEWATER. 1 < < freehold there, and he returned to that place as soon as he had taken freehold tneie, a uuder thege circum _ stletfhe hadCt Sg'ed ^doxnicile by going to Drouth C tf C ^T of 2S£ caTcannot have much innue.ce on"on 8 eC of polite privileges. In the f^- J ere is oonflict between two corporations on a subject of Pi0Pf™y, and they hia home were onportuuin to as>ceiu*i" w<- h voter Tnd The prevention of fraud opon the public by mnlt.plv.ng 2 votes of tbe same person. Tbe plaintiff bad lived long enough n Indover to give tbe selectmen tbe means of scrufnrz.ng his c List and there was no other place where be could have a pretence Fur he!' a citizen may well have his home in one town with all the „ Whe.es of an inhabitant, and yet have his legal settlement m to h"r town. For instance, if he should reside , foul r*» » ■ » town, own and occupy real property there gam a ^^tt™ ™ himself and his family, without any intention of lemov ng, he m" i, notwithstanding; be removed K> the place of his awful se le- men" in case he should become chargeable. But it would be hard to Z he had no home there, that he did not dwell there, and therefore i hit he should not be permitted to vote there. We are all of opinion that the plaintiff's case is well made out, and that judgment must be entered on the verdict. - ABINGTON v. NORTH BRIDGEWATER. Supreme Judicial Court of Massachusetts. 1840. [Reported 23 Pickering, 170.] Shaw C J., drew up the opinion of the court. 8 The question of Ebenezer Hill's settlement depends upon this whether he was an in- habitant of North Bridgewater before the 10th of April, 1767. If his house or place of residence was in that town, he acquired a set- tlement there, and the defendants are liable, otherwise not. n he several provincial statutes of 1692, 1701, and 1767 upon this subject, the terms "coming to sojourn or dwell," "being an inhab- itant," "residing and continuing one's residence," "coming to reside i Ace. Vanderpoel * D'Hanlon, 53 b 246 ; Fry's Election 71 Pa. 302-Ed. . Ace Sanders v. Getehell, 76 Me 158 j Hicks v. Skinner 72 £ . CI. Residence for voting means actual domicile. Dennis v. S, 17 Fla. 389. - M . « The opinion only is given : it sufficiently states the case.— *». 1? 178 ABINGTON V. NORTH BRIDGE WATER. [CHAP. II. and dwell," are frequently and variously used, and, we think, they are used indiscriminately, and all mean the same thing, namely, to desig- nate the place of a person's domicile. This is defined in the Consti- tution, c. 1, § 1, for another purpose, to be the place "where one dwelleth or hath his home." The fact of domicile is often one of the highest importance to a person; it determines his civil and political rights and privileges, duties and obligations; it fixes his allegiance; it determines his bel- ligerent and neutral character in time of war; it regulates his personal and social relations whilst he lives, and furnishes the rule for the disposal of his property when he dies. Yet as a question of fact, it is often one of great difficulty, depending sometimes upon minute shades of distinction, which can hardly be defined. It seems difficult to form any exact definition of domicile, because it does not depend upon any single fact, or precise combination of circumstances. If we adopt the above definition from the Constitution, which seems intended to explain the matter and put it beyond doubt, it will be found, on examination, to be only an identical proposition, equivalent to declaring, that a man shall be an inhabitant where he inhabits, or be considered as dwelling or having his home where he dwells or has his home. It must often depend upon the circumstances of each case, the combinations of which are infinite. If it be said to be fixed by the place of his dwelling-house, he may have dwelling houses in different places; if it be where his family reside, his family with himself may occupy them indiscriminately, and reside as much in one as another; if it be where he lodges or sleeps (per?ioctat), he may lodge as much at the one as the other; if it be his place of busi- ness, he may have a warehouse, manufactory, wharf, or other place of business, in connection with his dwelling-house in different towns. See Lyman v. Fiske, 17 Pick. 231. But without pursuing this gen- eral view further, to show that it is difficult, if not impossible, to lay down any general rule, on account of the very diversified cases which may be supposed, yet it will generally be found in practice, that there is some one or a few decisive circumstances which will deter- mine the question. In coming to the inquiry in each case, two considerations must be kept steadily in view, and these are, — 1. That every person must have a domicile somewhere; and 2. That a man can have only one domicile, for one purpose, at one and the same time. Every one has a domicile of origin, which he retains until he ac- quires another; and the one thus acquired is in like manner retained. The supposition, that a man can have two domiciles, would lead to the absurdest consequences. If he had two domiciles within the limits of distant sovereign States, in case of war, what would be an act of imperative duty to one, would make him a traitor to the other. As not only sovereigns, but all their subjects, collectively and indi- SECT. L] ABINGTON V. NORTH BRIDGE WAT KR. 179 vidually, are put into a state of hostility by war, be would become an enemy to himself, and bound to commit hostilities and afford pro- tection to the same persons and property at the same time. But without such an extravagant supposition, suppose he were domiciled within two military districts of the same State, he might be bound to do personal service at two places, at the same time; or in two counties, he would be compellable, on peril of attachment, to serve on juries at two remote shire towns; or in two towns, to do watch and ward in two different places. Or, to apply an illustration from the present case. By the provincial laws cited, a man was liable to be removed by a warrant to the place of his settlement, habitancy, or residence, for all these terms are used. If it were possible that he could have a settlement or habitancy in two different towns at the same time, it would follow that two sets of civil officers, each acting under a le«al warrant, would be bound to remove him by force, the one to one town, and the other to another. These propositions, therefore, that every person must have some domicile, and can have but one at one time, for the same purpose, are rather to be regarded as postulate/, than as propositions to be proved. Yet we think they go far in furnishing a test by which the question may be tried in each particular case. It depends not upon proving particular facts, but whether all the facts and circumstances taken together, tending to show that a man has his home or domicile in one place, over- balance all the like proofs, tending to establish it in another; such an inquiry, therefore, involves a comparison of proofs, and in mak- ing that comparison, there are some facts which the law deems decisive, unless controlled and counteracted by others still more stringent. The place of a man's dwelling-house is first regarded, in contradistinction to any place of business, trade, or occupation. If he has more than one dwelling-house, that in which he sleeps or passes his nights, if it can be distinguished, will govern. And we think it settled by authority, that if the dwelling-house is partly in one place and partly in another, the occupant must be deemed to dwell in that town in which he habitually sleeps, if it can be ascertained. Lord Coke, in 2 Inst. 120, comments upon the statute of Marl- bridge respecting courts leet, in which it says, that none shall be bound to appear, nisi in balivis ubi fuerunt conversantes ; which he translates, "but in the bailiwicks, where they be dwelling." His Lordship's comment is this: "If a man have a house within two leets, he shall be taken to be conversant where his bed is, for in that part of the house he is most conversant, and here conversant shall be taken to be most conversant." This passage, at first blush, might seem to imply that the entire house was within two leets. But no man can be of two leets. 2 Doug. 538; 2 Hawk. P. C. c. 10, § 12. Indeed, the whole passage, taken together, obviously means, a house partly within one leet and partly within another; otherwise, the bed would be within the two leets, as well as the house. 180 ABINGTON V. NORTH BRIDGEWATEK. [CHAP. [I. It is then an authority directly in point to show, that if a man has a dwelling-house, situated partly within one jurisdiction and partly in another, to one of which the occupant owes personal service, as an inhabitant, he shall be deemed an inhabitant within that jurisdiction within the limits of which he usually sleeps. The same principle seems to have been recognized in other cases, mostly cases of settlement, depending on domicile. Rex v. St. Olaves, 1 Str. 51; Colechurch v. Radcliffe, 1 Str. 60; Rex v. Brigh- ton, 5 T. R. 188; Rex v. Ringwood, 1 Maule & Selw. 381. I am aware that the same difficulty may arise as before suggested, which is, that the occupant may not always, or principally, sleep in one part of his house, or if he sleeps in one room habitually, the dividing line of the towns may pass through the room or even across his bed. This, however, is a question of fact depending upon the proofs. When such a case occurs, it may be attended by some other circumstance decisive of the question. If the two principles stated are well established, and we think they are, they are, in our opinion, sufficient to determine the present case. It becomes, therefore, neces- sary to see what were the facts of this case, and the instructions in point of law upon which it was left to the jury. The plaintiffs contended that two monuments pointed out by them were true and genuine monuments of the Colony line, and if so, a straight line drawn from one to the other would leave the house wholly in North Bridgewater, and the jury were instructed, if they so found, to return a verdict for the plaintiffs. But the jury stated, on their return, that on this point they did not agree, and therefore that part of the instruction may be considered as out of the case. It is therefore to be taken that, in point of fact, the line ran through the house, leaving a small part in Randolph and a large part in North Bridgewater. In reference to this, the jury were instructed, that if that line would leave a habitable part of the house in Randolph, the verdict should be for the defendants; otherwise, for the plaintiffs. The jury were also directed to find, specially, whether the beds of the family in which they slept, and the chimney and fireplace, were or were not in North Bridgewater. The jury found a verdict for the plaintiffs, which in effect determined, in point of fact, that the line did run through the house, leaving a small part in Randolph, that the beds and fireplaces of the house were on the North Bridgewater side of the line, and that there was not a habitable part of the house in Randolph. What was the legal effect of this instruction to the jury? To understand it, we must consider what was the issue. The burden of proof was upon the plaintiffs, to prove that Hill had his settlement in North Bridgewater. But proving that he had a dwelling-house, standing partly in North Bridgewater and partly in Randolph, would leave it wholly doubtful whether he had his domicile in the one or the other, provided that the line passed the house in such a direction SECT. I.] ABINGTON V. NORTH BRIDGEWATER. 181 as that either would have been sufficient for the purpose of a habita- tion; because it would still be doubtful whether he dwelt upon one or the other side of that line. But if the line ran in such a direction as to leave so small a portion on one side that it could not constitute a human habitation, then the position of the dwelling determined the domicile. In any other sense, we see not how the correctness of the instruction could be maintained. If the term "habitable part of the house " was intended to mean a portion of the house capable of being used with the other part for purposes of habitation, and the whole constituting together a place of habitation, then every part of the house capable of being used would be a habitable part. The instruction was, that if a habitable part was in Randolph, the occu- pant did not acquire a domicile in North Bridgewater; it would be equally true in law, that if a habitable part was in North Bridge- water, he did not acquire a domicile in Randolph. If the term "habitable," then, were used in the restricted sense, capable of being used as a part, and not as the whole of a human habitation, the in- struction would amount to this, that living ten years in a dwelling- house divided by an imaginary line into parts, both of which are useful and capable of being used as parts of a dwelling-house, the occupant would acquire no domicile. But this is utterly inconsistent with the principles of domicile. By leaving his domicile in Abing- ton, and living in the house in question, Hill necessarily lost his domicile in Abington, and necessarily acquired one by living in that house; and this must be in either Randolph or Bridgewater, and not in both. It may be impossible, from lapse of time and want of evidence, to prove in which, and therefore the plaintiffs, whose case depends on proving affirmatively that it was in North Bridgewater, may fail; nevertheless it is equally true, in itself, that he did acquire a domicile in one, and could not acquire one in both of those towns. Suppose the proof were still more deficient; suppose it were proved beyond doubt, that Hill lived in a house situated on a cleared lot of one acre through which the town line were proved to run, but it were left uncertain in the proof on which part of the lot the house was situated. It would be true that he lost his domicile in Abing- ton, and acquired one in Randolph or North Bridgewater; but it being entirely uncertain which, the plaintiff's would fail of proving it in North Bridgewater, and therefore could not sustain their action. So if the line ran through a house in such a manner that either side might afford a habitation, then dwelling in that house would not of itself prove in which town he acquired his domicile, though he must have acquired it in one or the other. In this sense we understand the instruction to the jury, and in this sense we think it was strictly correct. If they should find that the line so ran through the house as to leave a part capable, of itself, of constituting a habitation, in Randolph, then dwelling in that house, though partly in North Bridge- water, did not necessarily prove a domicile in North Bridgewater. 182 HA.GGART V. MORGAN. [CHAP. II. Under this instruction the jury found a verdict for the plaintiffs, and we think it is evident from this verdict, that they understood the instruction as we understand it. The jury find that one corner of the house, to the extent of two feet and one inch, was in Randolph, but that no habitable part of the house was in Randolph; not, as we think, no part capable of being used with the rest of the house for the purpose of habitation, but no part capable, of itself, of constitut- ing a habitation; from which they draw the proper inference, that the habitation and domicile, and consequently the settlement, was in North Bridgewater. And if we look at the fact, specially found by the jury, we are satisfied that they drew the right conclusion, and could come to no other. If the line had divided the house more equally, we think, on the authorities, that if it could be ascertained where the occupant habitually slept, this would be a preponderating circumstance, and, in the absence of other proof, decisive. Here it is found, that all the beds, the chimney and fireplace, were within the North Bridge- water side of the line, and that only a small portion of the house, and that not a side but a corner, was within the Randolph side, and that so small as to be obviously incapable of constituting a habitation by itself. We think, therefore, that the instruction was right, and the verdict conformable to the evidence. Judgment on the verdict for the plaintiffs.* HAGGART v. MORGAN. Court of Appeals, New York. 1851. [Reported 5 New York, 422.] Gardiner, J. 2 The defendants at the trial offered to prove "that at the time of taking out the attachment mentioned in the pleadings, and at the time of the giving of the bond in suit, the debtor, Bran- degee, was not a non-resident of the city of New York, but a resi- dent. That he had been absent about three years, in attending a law- suit at New Orleans, and returned in the spring of 1848." The judge excluded the evidence on the grounds, — 1st, That the offer itself showed the debtor to be a non-resident, at the time when the attachment issued, within the spirit of the act; 2d, that the giving of the bond to discharge the attachment prevented him from show- ing such fact; and the defendant excepted. This exception presents the only question in the cause worthy of serious consideration. The ruling of the judge was probably correct for the reasons as- signed by him. In the matter of Thompson, 1 Wend. 45, the distinc i Ace. Judkins v. Reed, 48 Me. 386. — Ed. 2 Part of the opinion only is given. — Ed. SECT. I.] WILLIAMS V. ROXBURY. 133 tion was taken between the residence of the debtor and his domicile. It was there held that his residence might be abroad, within the spirit of the statute, which was intended to give a remedy to creditors whose debtors could not be served with process, while his domicile continued in this State. In Frost v. Brisbin, 19 Wend. 14, it was said, in a case like the present, that actual residence, without regard to the dom- icile of the defendant, was within the contemplation of the statute. It was part of the offer of the defendants to prove that the debtor left this State in November, 1844, and returned in the spring of 1848, and that this absence of three years and a half was necessary to accomplish the business in which he was engaged. He was there- fore a non-resident when the attachment was issued, within these decisions, although domiciled in New York. 1 WILLIAMS v. ROXBURY. Supreme Judicial Court of Massachusetts. 1858. [Reported 12 Gray, 21.] Action of contract to recover back the amount of a tax assessed on the 1st of May, 1856, upon personal property held by the plaintiff as trustee under the will of John D. Williams, for the benefit of Mrs. Sarah A. W. Bradlee, formerly Miss Merry, and paid under protest. The parties agreed that if, in the opinion of the court, upon so much of the following facts as would be admissible in evidence, Richards Bradlee, her husband, was a resident of Brookline, judgment should be rendered for the plaintiff; otherwise, for the defendants. Richards Bradlee was born in Brattleboro, Vt, lived there until the a^e of sixteen, then went to New York, and there remained until after°he became of age in the spring of 1855, when he returned to Brattleboro for the purpose of finding some employment, but with a view of going to the West, and, after passing the summer in Brattle- boro, went to St. Louis in October in search of employment, and entered a store as a clerk, but under no contract for any fixed length of time; and in the following winter at St. Louis met Miss Merry, who resided in Roxburv, and became engaged to marry her. He never had any intention of making Roxbury his residence. In i dec Krone v. Cooper, 43 Ark. 547; Ludlow v. Szold, 90 la. 175, 57 N. W. 676 (see, however, Church v. Crossman, 4'.) la. 441): Risewick v. Davis, 19Md. 82 • Alston ». Newcomer. 42 Miss. 186 ; Johnson v. Smith, 43 Mo. 499 ; Long o. Ryan, SOGrat. 718. Contra, Wood v. Boeder, 15 Keb. 311, 63 N. W. 853 j ; Stratton v. Brigbam, 2Sneed, 420. Andsee Ballinger v. Lautier, 15 Kan. 608; Clark „. Likens, " Ashnllar mle prevails as to " settle,,,,,,, - or " residence - In poor-law cases Jef- ferson v. Washington, 19 Me. 293; North Yarmouth v. West Gardiner, 58 Me. -07. — Ed. 184 GILMAN V. GILMAN. [CHAP. II. March, 1856, he hired a house in Brookline, at a rent to begin on the 1st of April, for the residence of himself and his wife; visited it with her several times to set up the furniture; put a housekeeper and servants in charge of it, and removed into it his and Miss Merry't, movable property. They were married in Roxbury on the 9th of April, and on the same day started on a wedding tour, with the inten tion of returning, not to Miss Merry's former residence in Roxbury, but to the furnished house in Brookline, and on the 2d of May did return to that house. C. A. Welch, for the plaintiff. IV. Gaston, for the defendants. Shaw t , C. J. The question of domicile is a question of fact. It is a question of comparison of facts. Had Mr. Bradlee previously had a clear, fixed, and decided domicile, the circumstances would hardly be sufficient to show an acquisition of a domicile in Brookline. But when we compare the facts, we are brought to the opposite result. Brattleboro was his domicile of origin, but he scarcely ever visited there, and soon after coming of age went to St. Louis, and was there three or four months as a clerk, and there formed a marriage engage- ment with Miss Merry. lie then came to Massachusetts, without any intention to return to St. Louis with his wife. But he came to Massachusetts to fulfil his engagement. He acquired no domicile at Roxburv. He took a lease of a house in Brookline in March, the rent to commence on the 1st of April; took possession; put in a house- keeper; visited the house for the purpose of putting up furniture, and removed all his own and his wife's property to it, before their marriage. His subsequent absence was only temporary; he left on a marriage tour, with the intention to return to live in Brookline, and on his return he took actual possession of the house which he had hired. Our conclusion is that upon a balance of all the facts the domicile was in Brookline, and that The plaintiff is entitled to judgment. 1 GILMAN v. GILMAN. Supreme Judicial Court of Maine. 1863. [Reported 52 Maim, 165.] Davis, J. 2 This case comes before us upon an appeal from a decree of the Probate Court, admitting to probate and allowing the i Ace. Mann v. Clark, 33 Vt. 55. If the fact of residence and the intention to stay indefinitely concur, a domicile is gained at once, for however short a time the residence or the intent continues. Par- sons v. Bangor, 61 Me. 457 ; Stockton v. Staples, 66 Me. 197 ; Thorndike v. Boston, 1 Met. 242 ; McConnell v. Kelley, 138 Mass. 372 ; Home v. Home, 9 Ired. 99.— Ed 8 The opinion only is given : it .sufficiently states the case. — Ed. SECT. I.] GILMAX V. OILMAN. 185 last will and testament of Nathaniel Gilman. It was proved by a copy, the original being beyond the jurisdiction of the court. The validity of the will is not questioned. But the testator left a large amount of property in the city of New York as well as in this State; and the will has been proved and allowed there, on proof of its execution merely, without any inquiry in regard to domicile. The Surrogate seems to have assumed that jurisdiction of the property conferred original jurisdiction of the will, whether the testator's domicile was there or elsewhere. Even if his decree were conclusive, which cannot be admitted, no decree was made by him upon that point, or that was intended to settle it, as a judgment binding upon the courts of any other State. If the domicile of the testator, at the time of his death, was in New York, then his will should be allowed and recorded in this State as a foreign will. R. S., c. 64, § 8. And, in that case, the movable property in this State would be disposed of, under the will, according to the laws of the State of New York. Jarman on Wills, 2. But if his domicile was in this State, then the Probate Court here has original jurisdiction, and our laws must govern the construction of the will, and the disposal of the property. Harrison v. Nickerson, 9 Pet. 483; Story's Conflict of Laws, § 481; Bempde v. John- stone, 3 Ves. 199. It would be well, if possible, to have a distinct and clear idea of what we mean by the term "domicile," before applying it to this case. It is no easy matter, however, to find a definition that has not been questioned. Vattel defines it as "the habitation fixed in any place, with an intention of always staying there." This is quoted with approbation by Savage, C. J., in Thompson's Case, 1 Wend. 43; and in the case of Roberts' Will, 8 Paige, 519, Chan- cellor Walworth adopts it in substance. "Domicile is the actual residence of an individual at a particular place, with the animus manendi, or a fixed and settled determination to remain there the remainder of his life." This was slightly varied in Massachusetts, by Wilde, J., in Jennison v. Hapgood, 10 Pick. 77, where it is said to be a residence at a place "accompanied with the intention to re- main there permanently, or at least for an indefinite time." Vattel's definition was questioned by Parker, J., in Putnam v. Johnson, 10 Mass. 488, in which "domicile " is said to be "the habitation fixed in any place, without any present intention of removing therefrom." This form has been recognized in this State as more nearly correct than any of the others. Warren v. Thomaston, 43 Maine, 406. All definitions of this kind were criticised, with much force, by Lord Campbell, C. J., in the case of Regina v. Stapleton, 18 Eng. Law and Eq. 301, in which he suggests that, if one should go to Australia, with the intention of remaining there ten years, and linn returning, Ids domicile could hardly be said to continue in England. If he should leave his family in England, as stated in (he supposed 1S6 G1LMAN V. GILMAN. [CHAP. II. case, his domicile might properly be considered there. But, if a citi- zen of Maine, with his family, or having no family, should go to California, to engage in business there, with the intention of return- ing at some future time, definite or indefinite, and should establish himself there, in trade or agriculture, it is difficult to see upon what principle his domicile could be said still to be here. His residence there, with the intention of remaining there a term of years, might so connect him with all the interests and institutions, social and public, of the community around him, as to render it not only proper, but important, for him to assume the responsibilities of citizenship, with all its privileges and its burdens. Such residences are not strictly within the terms of any definition that has been given; and yet it can hardly be doubted that they would be held to establish the domicile. Other definitions have been given, which, though more general, are better adapted to determine the case at bar. Thus Story, in his Conflict of Laws, says that one's domicile is "his true, fixed, perma- nent home, and principal establishment, to which, whenever he is absent, he means to return." And, in Munroe v. Munroe, 7 CI. & Fin. 877, Lord Cottenham says that, to effect the abandonment of one's domicile, and to substitute another in its place, "is required the choice of a place, actual residence in the place chosen, and that it should be the principal and permanent residence." That the testator's original residence was in Waterville is ad- mitted. There he established himself in business, accumulated prop- erty, was married, and owned a house, in which, either continuously or at intervals, he resided, with his family, until he died there in 1859. It has been laid down as a maxim on this subject, that every person must have a domicile somewhere. Abington v. North Bridgewater, 23 Pick. 170. This may be doubtful in its application to some ques- tions. A life may be so vagrant that a person will have no home in any city or town where he can claim any of the rights or privileges appertaining to that relation. But, in regard to questions of citizen- ship, and the disposition of property after death, every person must have a domicile. 1 Amer. Lead. Cas. 725, note. For every one is presumed to be a subject of some government while living; and the law of some country must control the disposition of his property upon his decease. It is therefore an established principle of jurisprudence, in regard to the succession of property, that a domicile once acquired continues until a new one is established. Therefore the testator's domicile must be considered in Waterville, for the purpose of settling his estate, unless he had not only abandoned it, but had actually acquired a new domicile in New York. It appears in evidence that he commenced business in New York about 1831, at first being there transiently; that in 1836 or 1837, having been married a second time, he was in the habit of spending considerable time there with his family at the Astor House, and other SECT. I.] GILMAN V. G1LMAN. 187 hotels ; that he hired a house there, in which he lived portions of the year from 1841 to 1844; that he bought a house in Brooklyn, which he occupied at intervals from 1847 to 1852; that he bought a lot in Greenwood Cemetery, on which he built an expensive tomb; that, after 1836, his principal business was in New York, and that several of his children were married and settled there in business. But he never disposed of his house in Waterville; he always kept it fur- nished, in repair, and supplied with fuel; he kept a horse and car- riage there; he generally spoke of Waterville as his home; and, with the exception of one or two years (and during those years he did not keep house anywhere else), he lived in his house there a portion of the year with his family. A person may have two places of residence, for purposes of busi- ness or pleasure. Thorndike v. Boston, 1 Met. 242; Sears v. Boston, 1 Met. 250. But, in regard to the succession of his property, as he must have a domicile somewhere, so he can have only one. Green v. Green, 11 Pick. 410. It is not very uncommon for wealthy mer- chants to have two dwelling-houses, one in the city and another in the country, or in two different cities, residing in each a part of the year. In such cases, looking at the domestic establishment merely, it might be difficult to determine whether the domicile was in one place or the other. Bernal v. Bernal, 3 Mylne & Craig, 555, note. In the case of Somerville v. Somerville, 5 Ves. 750, 788, it is stated as a general rule, "that a merchant, whose business is in the metropolis, shall be considered as having his domicile there, and not at his country resi- dence." But no such rule can be admitted. The cases differ, and are distinguished by other facts so important, that the domicile can- not always be held to be in the city. It is frequently the case that the only real home is in the country; so that, while some such mer- chants talk of going into the country to spend the summer, others, with equal propriety speak of going into the city to spend the winter. If any general rule can be applied to such cases, we think it is this: that the domicile of origin, or the previous domicile, shall pre- vail. This is in accordance with the general doctrine, that the forum origines remains until a new one is acquired. 3 Kent, 431 ; Kilburn v. Bennett, 3 Met. 199; Moore v. Wilkins, 10 N. II. 455; Hood's Case, 21 Penn. 106. And this would generally be in harmony with the other circumstances of each case. If the merchant was originally from the country, and he keeps up his household establishment there, his residence in the city will be likely to have the characteristics of a temporary abode. While, if his original domicile was in the city, and he purchases or builds a country house for a place of summer resort, he will not be likely to establish any permanent relations with the people or the institutions of the town in which it is located. If we apply this rule to the case at bar, it will bring us to the conclusion thai the testator's domicile in Waterville remained un« 188 GILMAN V. OILMAN. [CHAP. II. chunked. Are there any facts that should make this case an excep- tion to the rule? The testator continued to vote in Waterville about one half of the time. There is no evidence that he ever voted in New York. His manner of life there, boarding generally at hotels, where he always registered his name as from "Maine," renders it probable that he never claimed or was admitted to be a voter in that city. He paid a tax upon personal as well as real estate in Waterville, a few of the years after he went into business in New York. He does not appear ever to have paid any tax in the latter place but one year. He evidently belonged to that class of men, fortunately small in number, who have no stronger desire than to avoid the paymen-t of taxes anywhere. These facts have little tendency to establish anything but the inten- tion of the testator. Residence, being a visible fact, is not usually in doubt. The intention to remain is not so easily proved. Both must concur in order to establish a domicile. Harvard College v. Gore, 5 Pick. 370. And, as both are known to be requisite in order to subject one to taxation, or to give him the right of suffrage, any resident who submits to the one, or claims the other, may be pre- sumed to have such intention. Both parties claim that the will itself furnishes evidence of the testator's domicile. At most, it can be of little weight, except on the question of his intention. Such inten- tion must relate to the future and not to the past. A will made at or near the close of life will not be likely to throw much light on that question. It must be an intention to reside. An intention to dis- pose of his property according to the laws of any place, does not tend to fix the testator's domicile there. So that, if the will is made in conformity with our laws, and even if, as is contended, some of its provisions would be void by the laws of New York, that cannot affect the question of domicile. Hoskins v. Matthews, 35 Eng. Law and Eq. 532; Anstruther v. Chalmer, 2 Simons, 1. Nor, on the other hand, does the fact that he described himself, in the will, and in the codicil, as "of the city and State of New York," make any material difference. Whicker v. Hume, 5 Eng. Law and Eq. 52. During the last twenty years of the testator's life, his ruling pur- pose seems to have been to accumulate property abroad, and escape taxation there and at home. This led him to sacrifice, to a large extent, the enjoyments of domestic life, and to sever or neglect all those social ties which might have given him position and influence in the community. He pursued this process of isolation, because, while it did not interfere with his gains, it diminished his expenses. This was what rendered his domicile a question of doubt. This is what gives to the testimony, as it gave to his life, an aspect of incon- sistency and contradiction. But through it all there is apparent an intention to retain his home in Waterville, as a place of retreat for himself during life, and a place of residence for his family after his SECT. I.] W1LBRAHAM V. LUDLOW. 18'J decease. He never bad any such home elsewhere. And, upon the whole evidence, we are satisfied that his domicile was never changed. The decree of the Probate Court is affirmed, with costs for the appellees. 1 WILBRAHAM v. LUDLOW. Supreme Judicial Court oe Massachusetts. 1868. [Reported 99 Massachusetts, 587.] Foster, J.' 2 The question in the present case was, whether the pauper, whose settlement was once in the plaintiff town of Wilbraham, had acquired a new settlement in Ludlow. The burden of proof to establish this was on the plaintiffs. After the presiding judge had announced the rule of law which he deemed to govern the case, and the instructions which he proposed to give to the jury, the plaintiffs declined to argue the case, submitted to a verdict for the defendants, and alleged exceptions. Under these circumstances, the only question open for revision is the correctness of the rulings. The evidence is not for the court to pass upon, and is reported only to make the instructions intelligible and enable us to judge better whether they were pertinent and accurate. The pauper leased his house in Ludlow in June, 1857, and never lived in it again. He remained in that town, working as a laborer, until August in that year. He then went to his brother's house in Wilbraham, and afterwards worked about, as a day laborer, in the towns of Wilbraham, Springfield, and Ludlow, till October, 1861, after which he remained in Wilbraham in the family of Horace Clark, who was about that time appointed his guardian, until he was committed as an insane pauper to the hospital at Northampton. The proposition to be maintained by the plaintiffs was, that after August, 1857, he con- tinued to reside in Ludlow within the meaning of the pauper laws ; so that a settlement in that town could be subsequently acquired. There was certainly no actual continuance of his former home in that town ; it was broken up and he had abandoned it, apparently without any intention to return there to live. But the argument for the plaintiffs is, that the pauper's domicile remained in Ludlow until he acquired a new one in some other town, and that, while absent in fact, he con- tinued to live there in contemplation of law, and by such constructive residence the prescribed period for acquiring a settlement was com- pleted. Assuming: that this view of the law is correct, and that domicile and residence are identical under the pauper laws, we are nevertheless of opinion that the rule of law stated to the jury was correct. If, from 1 Ace. Somerville v. Somerville, 5 Ves. 750; Harvard College v. Gore, 5 Pick. 370. — Ed. 2 The opinion only is given : it sufficiently states the case. —Ed. 190 BANGS V. BREWSTER. [CHAP. II. the time the pauper left Ludlow in August, 1857, he had " no opinions, desires, or intentions in relation to residence, except to have a home wherever he worked," then he did have in each successive town where he lived as a laborer a home and domicile so long as he remained there. It must be borne in mind that this was the case of one who had aban- doned his former dwelling-place, either with no intention of return, or at the most with such vague, indefinite, and remote purposes in this respect that they would not prevent him from readily acquiring a new domicile wherever he might go. The person was a day laborer without family, separated by judicial decree from his wife. Such a man, so situated, when he is laboring in one town with no other intention as to residence except to have a home wherever he works, may well be deemed to live there with the purpose of remaining for an indefinite period of time, and thus to have there all the home he has anywhere, as much of a domicile as such a wanderer can have. At least it was competent for the jury to come to that conclusion ; and the instructions under which they did so were unobjectionable. It is unnecessary to attempt a precise definition of the term domicile, as to which that eminent English judge, Dr. Lushington, has said that, " although so many powerful minds have been applied to the question, there is no universally agreed definition of the term, no agreed enumera- tion of the ingredients which constitute domicile." Maltass v. Maltass, 1 Rob. Ecc. 74. Story Confl. Laws, c. 3. Our own adjudged cases sufficiently establish the rule that one who is residing in a place with the purpose of remaining there for an indefinite period of time, and without retaining and keeping up any animus revertendi, or intention to return, to the former home which he has abandoned, will have his domicile in the place of his actual residence. Sleeper v. Paige. 15 Gray, 349 ; Whitney v. Sherborn, 12 Allen, 111. Where the question is one of national domicile, this statement may not be correct ; for such a con- dition of facts might not manifest an intention of expatriation. But it is accurate enough for cases like the present, which relate to a change of domicile from one place to another within the same Commonwealth. Exceptions overruled} BANGS v. BREWSTER. Supreme Judicial Court of Massachusetts. 1873. {Reported 111 Massachusetts, 382.] Morton, J. 2 The question at the trial was whether the plaintiff had on May 1, 1869, acquired a domicile in Orleans. There is no doubt as 1 " A sea captain, who has neither domicile nor residence abroad, whose domicile of origin, being abandoned long ago, without intention of returning, should be considered as lost, and who has no residence except on the steamer which he commands, is in the eye of the law, for the purpose of service of process on him, domiciled in the port where his vessel is moored at the time of service." — Court of Ghent (1891), 21 Clunet, 584. But see Boothbay v. Wiscasset, 3 Me. 354. —Ed. - Part of the opiniou only is given. — Ed. SECT.' I.] DUPUY y. WTJETZ. 191 to the rule of law that the plaintiff's domicile of origin in Brewster ad- hered to him until he had acquired a domicile somewhere else, and that in order to effect a change of domicile he must not only have had the intent to make his home in some other town, but he must in fact have made his home there. The intent and the act must concur, and until the intent was consummated by an actual removal of his home, no change of domicile was effected. Whitney v. Sherborn, 12 Allen, 111. Carnoe v. Freetown, 9 Gray, 357. The question is as to the application of this rule to the facts of this case. The plaintiff was a shipmaster, most of whose time was spent at sea. He went to sea in November, 1867, taking his wife with him, and in December, 1868, he sent his wife to Orleans, and she arrived there in February, 1869. He did not arrive at Orleans until July, 1S69, so that he was not personally present in Orleans on May 1, 1869. The special findings of the jury settle conclusively that when he went to sea in November, 1867, he had the definite intent to make Orleans his home, and that in December, 1868, he sent his wife to Orleans in pursuance of that intent. We think the jury were justified in finding that his domicile was in Orleans on the first of May. By sending his wife to Orleans with the intent to make it his home, he thereby changed his domicile. The fact of removal and the intent concurred. Although he was not personally present, he established his home there from the time of his wife's arrival. 1 DUPUY v. WURTZ. Court of Appeals, New York. 1873. [Reported 53 New York; 556.] Rapallo, J. 2 "When Mrs. Wurtz went to Europe with her hus- band, in 1859, she was domiciled in the city and State of New York. She and her husband were natives of the United States. It does not appear in the case that she ever had had any domicile except in this State, and it seems to be conceded on both sides that this was her domicile of origin. 1 Ace. Anderson v. Anderson, 42 Vt. 350. Contra, Hart v. Horn, 4 Kan. 232. In Porterfield v. Augusta, 67 Me. 556 (1877), it was held that the husband's domicile could not thus be changed if the wife's removal was without his prior consent. See further, Fayette v. Livermore, 62 Me. 229. If the wife removes, the husband remain- ing at the old domicile, their domicile is of course not changed. Schbles v. Murray Iron Works Co., 44 la. 190. And the fact thai a man's family is settled in a certain place (though prima facie evidence that he is domiciled there, Brewer v. Linnaeus, 36 Me. 428) is consistent with his being domiciled elsewhere. Greene v. Windham, 13 Me. 225; Cambridge v. Charlestown, 13 Mass. 501 ; Hairston v. Hairston, 27 Miss. 704 ; Pearce V. S., 1 Sneed. 63: — Ed. ' l Only so much of the opinion us deals with the question of domicile is given. — Ed. 192 DUPUY V. WURTZ. [CHAP. II. It is not pretended that she or her husband had abandoned their domicile in New York up to the time of his death in Europe in 1861 ; and from the evidence, which we have carefully examined, but do not consider it necessary to recite in detail, we are clearly of opinion that, up to the fall of 1868, she had not for a moment relinquished her intention and expectation, often declared orally, and in her written correspondence, of returning to her home in New York as soon as the condition of her health should permit; that her sojourn in Europe was compulsory, being caused by ill health and the advice of her physi- cian that she was not physically able to bear the voyage and the ex- citement which would await her on her return ; that she had not acquired any domicile abroad, and up to the time of the execution of the will in question, November 21, 1868, she continued to be a citizen of this State. But it is claimed on the part of the contestants that although it should be conceded that she was a citizen of New York at that time, and then intended to return, she changed her intention, after execut- ing the will, and acquired a domicile at Nice, and that this change destroyed the validity of the will, it not having been executed accord- ing to the laws of France. This is the only branch of the case which presents questions of difficulty. The counsel for the contestants is sustained by authority in the position that the domicile of the testatrix at the time of her death, and not at the time of the execution of the will, is the material in- quiry ; and that as to personal property, the question of intestacy, or of the valid execution of her will, depends upon the law of the place where she was domiciled at the time of her death. This question was decided after much discussion, and notwithstanding the dissents of three eminent judges of this court, in the case of Moultrie v. Hunt, 23 N. Y. 394. In England, the embarrassments likely to arise from such a rule are now obviated, as to British subjects, by the Act of Parliament of 24 and 25 Victoria, chapter 114, 1861-2, which provides in substance, as to wills made after the passage of the act, that wills of personal estate made out of the United Kingdom by a British subject shall be deemed well executed, whatever may be the domicile of the testator at the time of making the will, or of his death, if made according to the forms required by the law of the place where made, or of the place of the domicile of the testator at the time of making the will, or of the laws then in force in that part of Her Majesty's dominions where he bad his domicile of origin. Also, that no subsequent change of domicile shall affect the validity or construction of the will. This enactment substantially conforms the law of England to that which generally prevails in continental Europe. We have no such statute, and must therefore follow the rule laid down in Moultrie v. Hunt, and hold that if at the time of her death, January 8, 1871, Mrs. Wurtz had changed her domicile and ceased to be a citizen of SECT. L] DUPUY V. WURTZ. 193 this State, her will is not valid here, unless it would be valid accord- ing to the law of the place of her domicile at the time of her death. (See also 1 Brad. 69; Story Conf. Laws, § 473.) The important ques- tion, therefore, is whether the evidence establishes such a change of the domicile of the testatrix as is alleged by the contestants. A reference to some of the elementary principles governing ques- tions of domicile will facilitate this inquiry. One leading rule is that for the purposes of succession every person must have a domicile somewhere, and can have but one domicile, and that the domicile of origin is presumed to continue until a new one is acquired. (Somerville v. Somerville, 5 Ves. 750, 786, 787; Story, Conf. Laws, § 45; Abington v. N. Bridgewater, 23 Pick. 170; Graham v. Pub. Admr., 4 Brad. 128; De Bonneval v. De Bonneval, 1 Curteis, 856; Attorney-General v. Countess of Wahlstatt, 3 Hurl. & Colt. 374; Aikman v. Aikman, 3 McQueen, 855, 863, 877.) The statute of New York of 1830, 2 Stat, at Large, p. 69, § 69a, referred to by the learned counsel for the contestants, does not affect this principle, nor does it aid in determining whether Mrs. Wurtz had lost her domicile or citizenship in New York. The object and effect of this act are fully explained in Matter of Catharine Roberts' Will, 8 Paige, 525, 526; Isham v. Gibbons, 1 Bradf. 69; 4 Bradf. 128. To effect a change of domicile for the purpose of succession there must be not only a change of residence, but an intention to abandon the former domicile, and acquire another as the sole domicile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile. (Hodgson v. De Beauchesne, 12 Moore P. C. Cases, 283, 328; Munro v. Munro, 7 CI. & F. 877; Collier v. Rivaz, 2 Curteis, 857; Aikman v. Aikman, 3 McQueen, 855, 877.) This rule is laid down with great clearness in the case of Moorhouse v. Lord, 10 II. L. 283, 292, as follows: Change of residence alone, however long continued, does not effect a change of domicile as regulating the testamentary acts of the indi- vidual. It may be, and is, strong evidence of an intention to change the domicile. But unless in addition to residence there is an inten- tion to change the domicile, no change of domicile is made. And in \Yhicker v. Hume, 7 II. L. 139, it is said the length of time is an ingredient in domicile. It is of little value if not united to intention, and is nothing if contradicted by intention. And in Aikman v. Aikman, 3 McQueen, 877, Lord Cranworth says, with great concise- ness, that the rule of law is perfectly settled that every man's domi- cile of origin is presumed to continue until he has acquired another 9ole domicile with the intention of abandoning his domicile of origin; 194 DUPUY V. WURTZ. [CHAP. II. that this change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts the change. The question what shall be considered the domicile of a party, is in all cases rather a question of fact than of law. (Bruce v. Bruce, 6 Bro. Par. C. 566.) With respect to the evidence necessary to establish the intention, it is impossible to lay down any positive rule. Courts of justice must necessarily draw their conclusions from all the circumstances of each case, and each case must vary in its circumstances; and moreover, in one a fact may be of the greatest importance, but in another the same fact may be so qualified as to be of little weight. (12 Moore Priv. C. C. 330.) In passing upon such a question, in view of the important results flowing from a change of domicile, the intention to make such a change should be established by very clear proof (Donaldson v. Mc- Clure, 20 Scotch Session Cases, 2d series, 321; S. C. affi'd, 3 Mc- Queen, 852), especially when the change is to a foreign country. (Moorhouse v. Lord, 10 H. L. 283.) The intention may be gathered both from acts and declarations. Acts are regarded as more important than declarations, and written declarations are usually more reliable than oral ones. The principal if not the only act done by Mrs. Wurtz, in 1868, bear- ing upon the question of an intention to abandon her domicile in New York, consisted in her letting her house in Fifth Avenue to Mr. Gray in that year. This house she had kept unoccupied during all her .stay abroad up to that time, and it is to be observed that in letting it to Mr. Gray, the testatrix reserved one room for the storage of some of her effects. In all other respects she continued to live after 1868, as she had done during the preceding nine years, dwelling all the time in hotels, passing her winters at Nice, and during the residue of the year travelling on the continent and in England. Nice had for many years been her headquarters. She there retained one room in the hotel for the storage of such personal effects as she did not desire to take with her upon her travels. The same reasons which had theretofore prevented her from returning to what she in- variably called her home, still continued to exist. She had failed to recover the health of which she was in pursuit, and her physicians, still continued to advise her that her health would not permit her to make the voyage home. But up to the time of her death she retained her property and investments in this State, made no investments abroad, did not purchase or even hire a permanent place of residence, and lived continually in hotels. But after the execution of the will there was a change in the tenor of her correspondence, and in some of her oral declarations on the subject of returning to what she still continued to call her home, and it is upon these declarations that the contestants' case principally rests. In all her correspondence, up to the time of the making of the will, whenever the subject was alluded to, she had clearly exhib- .SECT. I.] DUPUY V. WURTZ. 195 ited not only an intention, but a determination and expectation of returning as soon as her health should permit, and in many instances she had mentioned a definite period for the continuance of her sojourn abroad, and in others down to October, in 1868, she placed the con- tinuance of her stay upon the ground that her physicians would not permit her to return. On the 20th of April, 1868, she wrote to Mr. Seymour: "Dr. Pantaleone has told me very plainly that he cannot permit me to cross the Atlantic; that 1 have no strength to combat a voyage, and all the trials that are to meet me on my arrival. So here I am." On the 2'Jth of September she again writes: kk In fact with that and other troubles I have been ill, and have been put back three years in my convalescence. Now I never expect to be well." And on the 3d of October, 1868, she says to Mrs. Seymour: "But my nervous system has been shattered, and after the experience of the past year (in heavy trials) I see why my physicians have not wished me to go home. ... Do you not think my articles ought to be in one place, except the silver? " The first letter of all the series in evidence, bearing upon the ques- tion of an abandonment of the intention to return, was written on the 21st of November, 1868, the very day of the execution of the will. It is addressed to Mrs. Seymour. In it the testatrix says: "I am now in Dr. Pantaleone's care, and find all three physicians, Dr. Vallery in Rome, Dr. Mannoir in Geneva, and Dr. Pantaleone, agree that it is rest and tranquillity of mind is very important to me. Many thanks for your kind wishes. But except to see a few friends I have no inducement to return to America. My nerves would not endure the shock, and it is plain that my life is more quiet here. But I do not intend to expatriate myself, and hold firmly to my allegiance to my beloved country." In her will, bearing date the same day, she makes the following declaration: "As I have for several years resided in Europe, sojourning now at one place, and now at another, as my health and comfort have required, I deem it proper for me here to say, that I consider my home and residence as still being in the city of New York, in my beloved country, the United States of America." August 5th, 1869, from Geneva she writes to Mrs. Sey- mour as follows: "I think Charles is staying in Europe on my account, and I never expect to return. But I feel badly at airy sacri- fice for me. But Dr. Pantaleone is correct. Any moral excitement upsets me away from turbulent spirits, and there is much to worry me at home." And on Hie 13th of October, INTO, the last date of the series of letters in evidence, she writes to Mrs. Courtney: "I never can live in a cold climate again, and the few years I have to live, I want to live in comfort and repose." These are all the written declarations of the testatrix bearing upon the question. There was also evidence of oral declarations, but they do not throw any additional light upon the intent ions of the testatrix. 196 DUPUY V. WUETZ. [CHAP. II. Mary Brown, a colored servant, who was in the service of the deceased during all her stay in Europe, testified that she always said, of late years, that she never would return to America. That the doctors told her she was not able to come, and, finally, she gave it up, and said she would not come. Mrs. Slemmer testified that, at Geneva, in the summer of 1870, Mrs. Wurtz said to her, "I know when I am well off, indeed I am not going back; I should never have an} 7 com- fort if I did." She said she had no intention of returning, and had let her house and disposed of her furniture. Mr. Sandford testified that he had frequently spoken to her of her returning to America, and her reply invariably was that she could not come, that her health would not admit of it. Mr. Gray and Mr. Aldis testified substan- tially to the same effect. This is, in substance, all the evidence in the case tending to show a change of domicile. The present is one of the exceptional cases in which the duty devolves upon this court to pass upon the facts as well as the law. And we think that the conclusion of fact, fairly to be drawn from all the evidence, is that the testatrix, after having long and consistently entertained the intention of returning, had finally become satisfied that the state of her health and nerves was such that she would be unable to return to her home, and would, in all proba- bility, die abroad. At the same time it establishes no intention to adopt a foreign domicile, but that she desired and claimed to retain her domicile of origin, and to have her estate administered according to the laws of the State of New York. This, the learned counsel for the contestants contends, the law would not permit her to do. That her long-continued stay in Europe, in connection with her final aban- donment of the idea of returning to New York; her dwelling, during the winter of each year, at Nice, furnishing, in part, the rooms which she occupied in the hotel ; the removal to that place of a portion of her personal effects, her hiring an apartment in the hotel by the year for the storage of such articles as she did not carry with her on her summer travels, and always returning to the same place, afforded such clear evidence of the abandonment of her domicile in New York, and adoption of a new domicile at Nice, that no claim on her part to continue to be considered a citizen and resident of New York could preserve her domicile of origin; and he has cited numerous authori- ties in support of these positions. An examination of these authorities will show that they proceed upon the ground that the person whose domicile was in question had actually settled in a new residence, with the intention of making it a permanent home; that this intention was manifested by unequivocal acts which outweighed any declarations to the contrary, and the intention was found as matter of fact. The principal cases referred to in this connection are Stanley v. Bernes, 3 Hagg. Ecc. R. 373; In re Steer, 3 H. & N. 594; Ander- son v. Laneuville, 9 Moore Priv. C. Cases, 325; Hoskins v. Mat- SECT. I.] DUPUY V. WUKTZ. l l J7 thews, 35 Eng. L. & Eq. .">40; Whicker w. Hume, 13 Beav. 384; 7 II. L. 124; Hegeman v. Fox, 31 Barb. 475; Ennis v. Smith, 14 How. D. S. 423. In Stanley v. Bernes, the testator, a British subject, had been natu- ralized in Portugal, and the point decided was that a British subject might acquire a domicile abroad (a proposition which had been dis- puted, Curling u. Thornton, 2 Addams' R. 19), and that his claim to be considered a British subject did not destroy his foreign domicile. In re Steer, the testator had resided many years in Hamburg, and had been regularly constituted a burgher of that city to enable him to trade there. In his will, made while on a visit to England, he recited those facts, and his intention to return to Hamburg, and at the same time declared that he did not mean to renounce his domicile of origin as an Englishman. The court in that case conceded the principle of law that the domicile of origin continued until the testator had mani- fested an intention of abandoning it and acquiring another as his sole domicile, but held that there was evidence of such an intention, and decided, as matter of fact, that he had elected Hamburg as his domi- cile; that he thereby necessarily gave up his English domicile, as he could not retain both, and that the declaration in his will was unavail- ing. In Anderson v. Laneuville the testator's domicile of origin was in Ireland. He had incontestably changed his domicile to Eng- land. He afterwards broke up his establishment in England and moved to France, where he bought and furnished a house, in which he resided permanently for thirteen years. The contest was between his English and French domicile, and was decided as a question of fact. In Hoskins v. Matthews, the decedent was held to have acquired a domicile in Tuscany by residence, the purchase of a villa and the establishment of his family there. Notwithstanding his continued attachment for his native country, and his often expressed desire to return there, and the fact that he was obliged, by his health, to live in a milder climate than that of his birth, the fact being established that he had formed the intention of permanently changing his domi- cile, the court held that the change was not the less effectual because induced by motives of health: at the same time admitting that even a permanent residence in a foreign country, occasioned by the state of health, may not operate as a change of the domicile, and that every case must stand upon its own circumstances. In Whicker v\ Hume, 13 Beav. 384, and 7 II. L. 124, the domicile of origin of the testator was in Scot hind. The evidence of an aban- donment of that domicile, and the adoption of a domicile in England was clear. Afterward he wen 1 to France, leaving some of his prop- erty in England, which he desired a friend to keep for him until his return. He died in Paris, having just made a will in the English form, which was sustained. The Scotch domicile was regarded as entirely out of the question, and the contesl was between tin; English and French domicile. (7 H L. 1 .">!).) 198 DUPUY V. WURTZ. [CHAP. II. In Hegemau v. Fox, much relied upon by the contestants, the question was whether the testator was at the time of his death domi- ciled in Florida. He was a native of Massachusetts, had been domi- ciled in New York, afterward in "Williamsburgh, and theu removed to Florida. There was no evidence of any intention to retain his domi- cile in Williamsburgh, and the opinion of the court was that the weight of the evidence established that he neither expected nor in- tended to return to the Northern States. He purchased a plantation in Florida, stocked it, and furnished his house, went to housekeeping, entered into the business of planting, and made other family arrange- ments looking to a permanent residence there. Upon these facts it was held that the circumstances that this change of residence was induced by considerations of climate and health, and that domestic troubles intervening induced the expression of an intention to return to New York, did not overcome the effect of his acts, which clearly indicated an intention to make his permanent home in Florida. The case is well reasoned in the opinion of the court, and does not conflict in principle with the result at which we have arrived, but depends upon its owu peculiar circumstances. In Funis v. Smith the question was whether General Kosciusko had acquired a domicile in France. He left Poland voluntarily, came to this country, and afterward went voluntarily to France, where he lived for fifteen years. He could have returned to Poland at any time. He was made a French citizen by decree of the national assembly, of which privilege he could not avail himself unless he became domiciled in France. Residence was, in that case, said to be prima facie evi- dence of domicile, and the facts were held to establish a domicile in France. In all these cases it was upon the ground of a clearly proved volun- tary and intentional acquisition of a foreign domicile that the courts held the former domicile abandoned. The late cases of Jopp v. Wood, [1864] 34 L. J. Eq. 212, and Moorhouse v. Lord, 10 II. L. 284, proceed upon the ground that in order to acquire a new domicile there must be an intention to aban- don the existing domicile. All the authorities agree that to effect a change of domicile there must be an intention to do both. Some of them hold that the intention to do one implies an intention to do the other. But in all the cases the question of intention is treated as one of fact, to be determined accordiug to the particular circumstances of each case. (See also Douglas o. Douglas, Law Rep. 12 Eq. 617, 647; The Attorney-General v. The Countess de Wahlstatt, 3 Hurl. & Colt. 374; Udny v. Udny, L. R. 1 Scotch App. 441, 1070; "White v. Brown, 1 Wallace, Jr. 217.) In the present case we find no sufficient evidence of an intention to adopt Nice or an)' other place as a permanent home or domicile. The plans of the testatrix after November, 1868, so far as disclosed, had reference to failing health and an apprehension that she might not SECT. L] DUPUY V. WURTZ. 199 long survive, rather than to adopting and settling in a new home. If she chose to be a wanderer during the short period of life which she supposed might still remain to her, she would not thereby, as re- spects her succession, lose her domicile of origin. (Attorney-General v. Countess of Wahlstatt, 3 II. & C. 374; White v. Brown, 1 Wall., Jr. 217.) Her long residence abroad, upon which the contestants rely, is not very significant in this case, as during by far the greater part of that time, in fact during all except about two and a quarter years before her death, she was clearly shown to be a mere sojourner in Europe, intending and fully expecting to return, and retaining her house in New York; and all the acts relied upon to show the acquisition of a domicile in Nice were done during that period, and while there can be no doubt of her continuing to be a citizen of New York. Her habit of spending her winters in Nice, her furnishing her rooms, hiring a store-room at the hotel, the bringing out there of her nick- nacks as they are called, were all before she had given any evidence of the relinquishment of her plan of return, and while she still retained her house in Fifth Avenue, New York. The only evidence of any change consists in her declarations. These indicate no intention to settle permanently in any particular place, and are clearly contradic- tory of any intention to abandon her domicile in New York. A mere declaration of intention not to return is not conclusive as to a change of domicile. As well expressed by Lord Kiugsdown in Moorhouse v. Lord, 10 H. L. 293 : "I can well imagine a case in which a man leaves England with no intention whatever of returning, but with a determination and certainty that he will not return." He then sup- poses the case of one laboring under a mortal disease, whose physi- cian advises him that his life may be prolonged or his sufferings mitigated b} 7 a change to a warmer climate, and says that to hold that he cannot do that without losing his right to the intervention of the fmglish laws as to the transmission of his property after his death, would be revolting to common sense and the common feelings of humanity. (See S. C. p. 283, per Lord Cranworth; Story Conf. Laws, §§ 45, 46; Guthrie's Savigny, (52, 63; Munro v. Munro, 7 CI. & Fin. 842, 876; 1 Rob. Ecc. R. 606; 2 Hurl. & Colt. 982; 3 id. 374.) Unless a new domicile was acquired, as has been already shown, the domicile of origin continues, and must govern, else there would be no law according to which the estate could be administered, espe- cially in a case of intestacy. 1 1 Ace. Moorhouse v. Lord, 10 II. I,. C. 272. See Johnstone v. Beattie, 10 CI. & F. 42. So domicile isnol necessarily changed by an absence, however long continued, for pleasure, travel, etc. : Culbertson r. Floyd County, 52 End. 361 ; Sears v. Boston,] Met. •j.'.n : Cadwalader v. Howell, is N. .1. L. V.iS. Nor by absence merely for business: t v. Goodwin, 35 Conn. 279 ; Greene v. Greene, 11 Pick. 410 ; Hallet v. Bassett, 100 Mass. 107 ; S. '•. Dayton, 77 Mo. 67S ; tee Jopp v. Wood, 34 Beav. 88. Nor by 200 HARRAL V. HARRAL. L GHAP - IL HARRAL v. HARRAL. Court of Errors and Appeals, New Jersey. 1884. [Reported 39 New Jersey Equity, 279.] Depue, J. 1 The domicile of the testator's parents, at the time of his birth, was in Bridgeport, Connecticut. That was his domicile of origin. His father died in 1862. In 18G5 the family residence in Bridgeport was sold, and in 1866 his mother removed to New York with all the family, except one son, who was married, and had his household in Bridgeport. The mother rented a house in New York as a residence for herself and the family, which they occupied until her death in December, 1867. After his mother's death, the testator resided in New York City with his brother, until he was appointed house-surgeon in the New York Hospital, and had his residence in the hospital until he went to Europe in August, 1869. The decedent went abroad for the purpose of acquiring the German language and continuing his professional studies. In 1869 he was in Paris temporarily, and in the fall of that year left Paris for Germany, where he remained about two years. He then went to Paris again, and resided there in No. 8 Rue de la Sorbonne, known as the Latin Quarter. In 1872, he became acquainted with the complain- ant, who lived with him as his mistress at No. 8 Rue de la Sorbonne until they were married on the 20th of February, 1877. Imme- diately after their marriage they began housekeeping in a house rented by him at Suresnes, a village a short distance from Paris. He had a lease of the house for two years, and he and his wife continued to occupy it until his return to America, in May, 1878. He seems to have been attached to his wife. In May, 1877, he wrote to Mr. Wallis, announc- ing his marriage, and said he was "happy and contented." The facts connected with the residence of the decedent at Suresnes are fully stated in the opinion of the chancellor, and need not be repeated here. The chancellor, from the testimony, concluded that the decedent had settled himself in France to live there, and make it his home. The circumstances under which he was brought to America are also detailed in the chancellor's opinion. They show no intention on the part of the decedent to make any change at that time in his domicile. The evi- dence is quite to the contrary. A person sui juris may change his domicile as often as he pleases. To effect such a change, naturalization in the country he adopts as his absence as a volunteer soldier : S. v. Judge, 13 Ala. 805 ; Brewer v. Linnaeus, 36 Me. 428. Nor by absence to hold public office : Dennis v. S., 17 Fla. 389 ; Walden v. Canfield, 2 Rob. (La.) 466 ; Venable v. Paulding, 19 Minn. 488 ; Hannon v. Griz- zard, 89 N. C. 115. But in cases of this kind the domicile will of course be changed if the requisite intent exists. Doucet v. Geoghegan, 9 Ch. Div. 441 ; Mooar v. Harvey, 128 Mass. 219 ; Wood v. Fitzgerald, 3 Or. 568. — Ed. 1 Only so much of the opinion as discusses the question of domicile is given. — Ed SECT. I.] HARRAL V. HARRAL. 201 domicile is not essential. He need not do all that is necessary to divest himself of his original nationality. There must be a voluntary change of residence ; the residence at the place chosen for the domicile must be actual ; to the factum of residence there must be added the animus manendi ; and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to in- duce him to adopt some other permanent home. Haldane v. Eckford, L. R. 8 Eq. 631 ; King v. Foxwell, L. R. 3 Ch. D. 518 ; Lord v. Col- vin, 5 Jur. (N. S.) 351 ; Aikman v. Aikman, 7 Id. 1017, 1019 ; Douglas v. Douglas., L. R. 12 Eq. 617, 644 ; Udny v. Udny, L. R. 1 H. L. Sc. 441 ; Cadwalader v. Howell, 3 Harr. 144, 145. We think the evidence proves that the testator's domicile, arising from the factum of residence and the animus manendi, was, at the time of his death, by the jus gentium, in France. But it is contended that, inasmuch as the decedent never obtained an authorization from the French government, he was incapable, by the law of that country, of acquiring a domicile in France, and that there- fore his domicile of origin, or his domicile before he took up his resi- dence in France, either revived, or, by the French law, would govern, in the disposition of his personal estate if it was administered upon in France. Article XIII. of the Code Napoleon is relied on to sustain this contention. That article is in these words: "The foreigner who shall have been admitted by the government to establish his domicile in France shall enjoy in that country all civil rights so long as he shall continue to reside there." It appears from the evidence that the authorization contemplated by this article of the Code is obtained by an application to the head of the government, and is attended with formalities almost as solemn as those required for naturalization in France. The construction of this article was before the English courts in Bremer v. Freeman, 10 Moore P. C. 306, and Hamilton v. Dallas, L. R. 1 Ch. D. 257, and was somewhat considered in the New York Court of Appeals in Dupuv v. Wurtz, 53 N. Y. 556. In Bremer v. Freeman it was held that, if by the jus gentium the decedent, who was an English woman by birth, was de facto domiciled in France, the authorization of the French government was not necessary to confer upon her the right of testacy, and that her will, not executed in con- formity with the French law, was invalid. In Hamilton v. Dallas, Vice- Chancellor Bacon held that a de facto domicile, governing the suc- cession of the personal estate of a decedent, might be acquired by a foreigner resident in that country who had not obtained the govern- ment authorization required by Article XIII. of the French Code, as the condition for the enjoyment by a foreigner resident in that country of full civil rights. The learned judge who prepared the opinion in Dupuy v. Wurtz expressed a contrary opinion, but the case did not call 202 BORLAND V. BOSTON. [CHAP. II. for a decision on that point. The counsel of the defendants have pro- duced several decisions of the French courts which hold that, in cases of intestacy, the inheritance of a foreigner domiciled de facto in France will not be distributed under the French law unless he shall have ob- tained the authorization required \>y Article XIII. of the Code. Pepin's Case, decided in 1868 ; Melizet's Case, decided January, 1869 ; Ott's Case, decided January, 1869 ; Forgo's Case, decided in 1875 ; and Cuirana's Case, decided in 1881. It will be observed that all these cases relate to the transmission of property by inheritance, or by testa- mentar}' disposition. They do not touch the question in controversj' in this case. The complainant does not claim the property in dispute by any right of succession, nor does she dispute the validity of the tes- tator's will, as not being executed according to the laws of France. The claim she makes to the one half of the personal property of her deceased husband she founds upon the marriage in France, and the incidents of the married relation, in virtue of which she claims that, by the French law, she became thereby ipso facto entitled to that share in his movable property. The French jurists recognize a distinction between such a legal domi- cile as a foreigner can acquire by fulfilling the requirements of Article XIII. of the Code, and will entitle him to all the civil rights of native- born Frenchmen, and a domicile, in fact, which is acquired by a resi- dence without compliance with any legal formalities. The right of a foreigner to contract a lawful marriage is not made to depend on the observance of such forms as are necessary to the acquisition of citizen- ship ; it is given on the sole condition of six months' residence by either of the parties. Article LXXIV. of the Code provides that " the marriage shall be celebrated in the commune in which the one or the other of the parties shall be domiciled," and declares that " this domi- cile shall be established b}' six months' continued habitation within the same commune." These conditions were fulfilled, and the marriage was lawfully celebrated under the French law. 1 BORLAND v. BOSTON. Supreme Judicial Court of Massachusetts. 1882. [Reported 132 Massachusetts, 89.] Lord, J. 2 The evidence tended to show that the plaintiff was born in Boston in 1824, and had lived there until June, 1876, when he sailed for Europe with his family. He testified that when he left Boston he had definitely formed the intention of not returning to Boston as a resi- dent; that in the fall of 1876 he had decided to make Waterford, 1 Ace. Collier v. Rivaz, 2 Curt. Eccl. 855. — Ed. 2 Part of the opinion, dealing with a different question, is omitted. — Ed. SECT. I.] BORLAND V. BOSTON. 203 Connecticut, his residence, and then formed the intention of purchas- l iig laud there, which he bought on May 28, 1877; and that he re- mained in Europe until 1879, when he returned to this country, and went to Waterford. On this evidence, the judge instructed the jury, " that a citizen, by the laws of this Commonwealth, must have a home or domicile somewhere on the first day of May for the purpose of taxation; that in order to change such home or domicile, once acquired, and acquire a new one, the intention to make the change and the fact must concur; that if the plaintiff, with no definite plan as to the length of time he should remain abroad, and no definite pur- pose about a change of domicile, went to Europe with his family, that would not effect a change of his domicile from Boston, and he would remain liable to taxation there; but that if he left Boston in 1876 with his family to reside in Europe for an indefinite length of time, with the fixed purpose never to return to Boston again as a place of residence, and with the fixed purpose of making some place other than Boston his residence whenever he should return to the United States, and had in his mind fixed upon such place of residence before May 1, 1877, and remained in Europe until after that time, he was not liable to this tax as an inhabitant of Boston on the first of May of that year; that whether he had done enough to make Waterford his home or not, was not essential in this case, — if he had lost his home in or ceased to be an inhabitant of Boston at the time, he was not taxable there." Certainly, the latter part of this instruction would be understood to be in conflict with the former; for, not referring now to the words used by the judge, the obvious meaning of the whole sentence is, first, to instruct the jury that a man once having a home here is taxable here until both the purpose to change his home and the fact of chang- ing his home concur; and afterwards to instruct them that, if his in- tention to make another place his home is formed after he leaves this country, and before the first of May, such intention removes his lia- bility to taxation, even although the fact of change does not concur with the intention. Although there is this obvious inconsistency, it arises partly from inherent difficulties in the case, partly from the im- possibility of stating a fixed rule which shall be applicable to all cases, under the infinite variety of circumstances attending them, and the various adjudications which have been made upon the subject. The source of the difficulty is in the use of words of exactly, or sub- stantially, or partially, the same signification, but at different times used with different significations. There are certain words which have fixed and definite significa- tions. "Domicile" is one such word; and for the ordinary purposes of citizenship, there are rules of general, if not universal acceptation, applicable to it. "Citizenship," "habitancy," and "residence" are severally words which may in the particular case mean precisely the same as "domicile," but very frequently they may have other and 204 BORLAND V. BOSTON. [CHAP. II. inconsistent meanings; and while in one use of language the expres- sions a change of domicile, of citizenship, of habitancy, of residence, are necessarily identical or synonymous, in a different use of lan- guage they import different ideas. The statutes of this Common- wealth render liable to taxation in a particular municipality those who are inhabitants of that municipality on the first day of May of the year. Gen. Sts. c. 11, §§ 6, 12. It becomes important, there- fore, to determine who are inhabitants, and what constitutes habitancy. The only case adjudged within this Commonwealth, in which the word of the statute, "inhabitant," is construed to mean something else than "being domiciled in," is Briggs v. Rochester, 16 Gray, 337, although that decision is subsequently recognized in Colton v. Longmeadow, 12 Allen, 598. In Briggs v. Rochester, Mr. Justice Metcalf, in speaking of the word "inhabitant," says that it has not the meaning of the word "domicile" "in its strictly technical sense, and with its legal incidents." He says also that the word "domicile " is not in the Constitution nor in the statutes of the Commonwealth. So far as the Constitution is concerned, this is correct, but he had evidently overlooked a statute of ten years before, in which the word "domicile " was used, and upon the very subject of taxation, in a pro- viso in these words: "Provided that nothing herein coutained shall exempt said person from his liability to the payment of any tax legally assessed upon him in the town of his legal domicile." St. 1850, c. 276. Gen. Sts. c. 11, § 7. This language is a strong legis- lative assertion that domicile is the test of liability to taxation; and in an opinion given by the justices of this court to the House of Representatives in 1843, in reference to a student's right to vote in the municipality in which he is residing for the purposes of educa- tion, it was said, "And as liability to taxation for personal property depends on domicile." 5 Met. 587, 590. Nor do we think that the opinion in Briggs v. Rochester gives the true force as used in the Constitution of the word "inhabitant; " for we cannot doubt that for the purposes of taxation the word "inhabi- tant" must be used in the same sense as when used in reference to electing and being elected to office; especially as at that time the payment of a tax duly assessed was one of the qualifications of an elector; and more especially as the Constitution itself professes to ■jive its definition of "inhabitant" for the purpose of removing all doubt as to its meaning. Its language is, "And to remove all doubts concerning the meaning of the word 'inhabitant' in this Constitu- tion, every person shall be considered as an inhabitant, for the pur- pose of electing and being elected into any office, or place within this State, in that town, district, or plantation, where he dwelleth, or hath his home." Const. Mass. c. 1, § 2, art. 2. Nor do we see how the construction given to the statute is consist- ent with the result at which the court arrived. The learned judge SECT. I.] BORLAND V. BOSTON. 205 says, "In the statute on which this case depends, we are of opinion that the words l where he shall be an inhabitant on the first day of May,' mean where he shall have his home on that day." It is there- fore clear that the learned judge does not give to the word "inhabi- tant" the meaning which the construction of the statute before re- ferred to authorizes him to give, but he does give the exact definition of the Constitution, to wit, "where he dwelleth, or hath his home;" for these words have not in the Constitution two meanings, but the single signification given to them by the learned judge, "his home," the exact, strict, technical definition of domicile. We cannot construe the statute to mean anything else than "being domiciled in." A man need not be a resident anywhere. He must have a domicile. He cannot abandon, surrender, or lose his domicile, until another is acquired. A cosmopolite, or a wanderer up and down the earth, has no residence, though he must have a domicile. It surely was not the purpose of the Legislature to allow a man to abandon his home, go into another State, and then return to this Commonwealth, reside in different towns, board in different houses, public or private, with no intention of making any place a place of residence or home, and thus avoid taxation. Such a construction of the law would create at once a large migratory population. Although we have said that the case of Briggs v. Rochester has been recognized in Colton v. Longmeadow, 12 Allen, 598, yet we ought to state that the decision in Colton v. Longmeadow was placed upon entirely different grounds. It was there held that the plaintiff had lost his domicile in Massachusetts because he had actually left the Commonwealth, and was actually in itinere to his new domicile, which he had left this Commonwealth for the purpose of obtaining, and which in fact he did obtain. If it should be deemed sound to hold that a person, who, before the first of May, with an intention in good faith to leave this State as a residence and to adopt as his home or domicile another place, is in good faith and with reasonable dili- gence pursuing his way to that place, is not taxable here upon the first of May, the doctrine should be limited strictly to cases falling within these facts. And both of the cases cited, Briggs v. Rochester and Colton v. Longmeadow, would fall within the rule. In each of those cases, the plaintiff had determined, before starting upon his removal, not only upon his removal, but upon his exact destination, and in fact established himself, according to his purpose, without delay, and within a reasonable time. We think, however, that the sounder and wiser rule is to make tax- ation dependent upon domicile. Perhaps the most important reason for this rule is, that it makes the standard certain. Another reason is, that it is according to the general views and traditions of our people. One cannot but be impressed by certain peculiarities in Briggs v. Rochester. The bill of exceptions in that case begins thus: "It 206 BORLAND V. BOSTON. [CHAP. II. was admitted by both parties and so presented to the jury, that the only question at issue was the domicile of the plaintiff on the first of May, 1858; and that if he was then an inhabitant of the defendant town, the tax was rightly imposed ; but that if he was not on that day an inhabitant of said town, he was not then rightly taxable and taxed therein." Nothing can be more clear than that all parties understood, and the case was tried upon the understanding, that domicile and in- habitancy meant the same thing; otherwise, domicile, instead of being "the only question at issue," would not have been in issue at all. And the judge in giving his opinion saj-s that, if domicile in its strictly technical sense, and with its legal incidents, was the control- ling fact, the plaintiff was rightly taxed in Rochester. Another noticeable fact in Briggs v. Rochester is this, that if the tax-payer in the pursuit of his purpose is beyond the line of the State before the first of May, he is not liable to taxation in the State; but if by detention he does not cross the line of the State till the first of May, he is taxable here. We cannot adopt a rule which shall make liability to taxation depend upon proximity to a State line. We have said that we prefer the test of domicile, because of its cer- tainty and because of its conformity to the views and traditions of our people, and, we may add, more in accordance with the various adjudications upon the subject in this State, and more in accord with the general legal and judicial current of thought. It is true, that, as said by Mr. Justice Metcalf, "it has repeatedly been said by this and other courts, that the terms 'domicile,' 'inhabitancy,' and 'residence 'have not precisely the same meaning." But it will be found upon examination that these three words are often used as sub- stantially signifying the same thing. In one of the earliest cases, Harvard College v. Gore, 5 Pick. 370, 377, Chief Justice Parker, in defining the word "inhabitant" as used in the laws, defined it as one which imported not only domicile, but something more than domicile. "It imports citizenship and municipal relations, whereas a man may have a domicile in a country to which he is an alien, and where he has no political relations. . . . An inhabitant, by our Constitution and laws, is one who being a citizen dwells or has his home in some particular town, where he has municipal rights and duties, and is subject to particular burdens; and this habitancy may exist or continue notwithstanding an actual residence in another town or another country." There are other passages in the same opinion which, although used alio intuitu, yet clearly indicate the current of judicial thought; for example, "The term 'inhabitant' imports many privileges and duties which aliens cannot enjoy or be subject to," p. 373; "does not fix his domicile or habitancy," p. 372; "a pretended change of domicile to avoid his taxes," p. 378. There are other similar expressions running through the whole opinion. In Lyman v. Fiske, 17 Pick. 231, the views of Chief Justice Parker SECT. I.] BORLAND V. BOSTON. 207 in Harvard College v. Gore were considered by Chief Justice Shaw; and although expressing no dissent from the views of Chief Justice Parker, it is evident that in his apprehension the word "inhabitant" as used in the Constitution imported one domiciled, and he did not deem it important to consider whether it imported anything else in relation to political rights, duties, and liabilities than the word "domi- ciled " would import. But as the views of that magistrate are never to be slightly regarded, and as he gave the opinion in both the cases decided by this court, cited by Mr. Justice Metcalf as settling that the words "domicile," "habitancy," and "residence" have not pre- cisely the same meaning, we cite from his opinion to show what his views were of "domicile" and "habitancy." "In some respects, per- haps, there is a distinction between habitancy and domicile, as pointed out in the case of Harvard College v. Gore, 5 Pick. 377, the former being held to include citizenship and municipal relations. But this distinction is believed to be of no importance in the present case; because all the facts and circumstances which would tend to fix the domicile would alike tend to establish the habitancy. It is difficult to give an exact definition of ' habitancy.' In general terms, ■one may be designated as an inhabitant of that place which consti- tutes the principal seat of his residence, of his business, pursuits, con- nections, attachments, and of his political and municipal relations. It is manifest, therefore, that it embraces the fact of residence at a place, with the intent to regard it and make it his home. The act and intent must concur, and the intent may be inferred from declar- ations and conduct." It is entirely clear that in his opinion, so far as relates to municipal rights, privileges, and duties, there is substantially no distinction between "domicile" and "habitancy-" And, as further illustrating the views of that magistrate and the general sentiment of our people as to the use of such language in legislative enactments, we cite his language in Abington v. North Bridgewater, 23 Pick. 170, 176: "In the several provincial statutes of 1692, 1701, and 1767, upon this sub- ject, the terms ' coming to sojourn or dwell,' ' being an inhabitant,' * residing and continuing one's residence,' ' corning to reside and dwell,' are frequently and variously used, and, we think, they are used indiscriminately, and all mean the same thing, namely, to desig- nate the place of a person's domicile. This is defined in the Consti- tution, c. 1, § 2, for another purpose, to be the place ' where one dwelleth, or hath his home.' " Authorities could be multiplied almost indefinitely in which it has been held by this court that, so far as it relates to municipal rights, privileges, powers or duties, the word " inhabitant" is, with the excep- tions before referred to, universally used :is signifying precisely the same as one domiciled. Sec Thorndike '•. Boston, 1 Met. 212, 245; Sears v. Boston, 1 Met. 250, 252; Blanehard v. Stearns, 5 .Met. 298, 304; Otis v. Boston, 12 Cush. 44, 1!» ; Bulklev r. Williamstown, 3 Gray. 193, 494. 208 BORLAND V. BOSTON. [CHAP II. As illustrative, however, of the fact that domicile and habitancy are, for the ordinary purposes of citizenship, such as voting, liability to taxation and the like, identical, and that when they are susceptible of different meanings they are used alio intuitu, we cite the language of Chief Justice Shaw in Otis v. Boston, 12 Cush. 44, 49: "Perhaps this question has heretofore been somewhat complicated, by going into the niceties and peculiarities of the law of domicile, taken in all its aspects; and there probably may be cases where the law of domi- cile, connected with the subject of allegiance, and affecting one's national character, in regard to amity, hostility, and neutrality, is not applicable to this subject. But as a man is properly said to be an inhabitant where he dwelleth and hath his home, and is declared to be so by the Constitution, for the purpose of voting and being voted for; and as one dwelleth and hath his home, as the name im- ports, where he has his domicile, most of the rules of the law of domi- cile apply to the question, where one is an inhabitant." A very strong case of retention of domicile, while in itinere to a new one which is subsequently reached, is Shaw v. Shaw, 98 Mass. 158, in which the court say that the rule of Colton v. Longmeadow, which merely followed Briggs v. Rochester, "is such an exception to the ordinary rule of construction as ought not to be extended." Upon the whole, therefore, we can have no doubt that the word "inhabitant" as used in our statutes when referring to liability to taxation, by an overwhelming preponderance of authority, means "one domiciled." While there must be inherent difficulties in the decisiveness of proofs of domicile, the test itself is a certain one; and inasmuch as every person by universal accord must have a domi- cile, either of birth or acquired, and can have but one, in the present state of society it would seem that not only would less wrong be done, but less inconvenience would be experienced, by making domi- cile the test of liability to taxation, than by the attempt to fix some other necessarily more doubtful criterion. Whether the cases of Briggs v. Rochester and Colton v. Long- meadow should be followed in cases presenting precisely similar circumstances, the case at bar does not require us to decide; and we reserve further expression of opinion on that question until it shall become necessary for actual adjudication. If they are to be deemed authority, they should certainly be limited to the exact facts, where a person before leaving this Commonwealth has fixed upon a place certain as his future home, and has determined to abandon this Com- monwealth for the purpose of settling in his new home, and is, upon the first of May, without the Commonwealth, in good faith and with reasonable despatch actually upon his way to his new home. The plaintiff does not bring himself within this rule; for although he might have left the Commonwealth with the fixed purpose to abandon it as a residence, he did not leave it on his way to a place certain which he had determined upon as his future residence, and was pro- SECT. I.] YOUNG V. POLLAK. -09 ceediug to with due despatch; and, upon the general rule that, having had a domicile in this Commonwealth, he remains an inhabitant for the purpose of taxation until he has acquired a new domicile, the intention and fact had not concurred at the time when this tax was assessed. The instructions of the presiding judge, therefore, inas- much as they were not based upon the rules here laid down, were not accurately fitted to the facts of the case, and the Exceptions must be sustained. 1 YOUNG v. POLLAK. Supreme Court of Alabama. 1888. [Reported 85 Alabama, 439.] The plaintiffs were merchants in the city of Montgomery, suing on common counts for goods sold and delivered to Mrs. Effie Young, the defendant, who was a married woman. The defendant pleaded the general issue, and a special plea averring her coverture ; the plaintiffs replied, alleging that her husband had abandoned her, and had removed from the State, and thereafter the defendant carried on business on her own account and in her own name, as if sole and unmarried. 2 Stone, C. J. The fourth charge given at the request of plain tiffs in each of these cases is in the following language: " If W. L. Young, husband of defendant, removed into the State of Alabama as a place of refuge, or to escape arrest in the State of Georgia, and that was his sole purpose, this would not give him a domicile in Alabama." I hange of domicile consists of an act done, with an intent. The act is an actual change of residence. The intent, to effect the change, must be to acquire a new domicile, either permanent in purpose, or of indefinite duration. A temporary habitation, without intent to make it a permanent home, or one of indefinite duration, is not a change of domicile. Merrill v. Morrisset, 76 Ala. 433 ; 5 Amer. & Eng. Encyc. of Law, 863. The charge copied hinges the question of Young's change of domicile on the purpose with which he moved from Georgia to Alabama. Men change their domiciles with very varying purposes or motives. The desire to live in a healthier region, to have better social or educa- tional advantages, to enjoy better church privileges, to be near one's relatives, to live in a new and growing country, and sometimes to be 1 Ace. Pfoutz v. Comford, 36 Pa. 420. No change of domicile takes place while one is in ilinere to a new domicile: Lamar v. Mahony, Dudley, 92; Littlefield v. Brooks, 50 Me. 475 ; Bulkley v. Williamstown, 3 < :i;«y, 493 ; Shaw v. Shaw, 98 Mass. 158. — Ed. 2 This statement, containing all the facts necessary t<> understand the question of domicile raise], is substituted foT the statement of the reporter. Part of the opinion is omitted. Ed. 14 210 DITSON V. DITSON. [CHAP. II. relieved of disagreeable surroundings, — these and man}* more ma}' be classed among the purposes — sole purposes, if you please — with which men change their residence. Yet, if the change be in fact made with the intent to acquire a new residence, either permanent or of indefinite duration, this is a change of domicile. The intent that the new hab- itation shall, or shall not be, permanent, or of indefinite duration, and not the purpose in making the change, is the pivot on which the inquiry turns. The city court erred in giving this charge. The second charge at the instance of plaintiffs in each of these cases needs modification. If Young, under the rules declared above, be- came a resident of Alabama, then his return to Georgia under arrest, or involuntary confinement there, are, of themselves, no evidence of a change of domicile. 1 DITSON v. DITSON. Supreme Court of Rhode Island. 1856. [Reported 4 Rhode Island, 87.] Ames, C. J. 2 Although, as a general doctrine, the domicile of the husband is, by law, that of the wife, yet, when he commits an offence, or is guilty of such dereliction of duty in the relation as entitles her to have it either partially or totally dissolved, she not only ma}', but must, to avoid condonation, establish a separate domicile of her own.' This she may establish, nay, when deserted or compelled to leave her hus- band, necessity frequently compels her to establish, in a different judi- cial or State jurisdiction than that of her husband, according to the residence of her family or friends. Under such circumstances she gains, and is entitled to gain, for the purposes of jurisdiction, a domicile of her own ; and especially if a native of the State to which she flies for refuge, is, upon familiar principles, readily redintegrated in her old domicile. This is the well-settled doctrine of law upon the subject (Bishop on Marriage and Divorce, §§ 728-730 inch and cases cited), and has by no court been more ably vindicated than by the Supreme Court of Massachusetts. Harteau v. Harteau, 14 Pick. 181, 186. A more proper case for the application in favor of a petitioner for divorce of the foregoing principles relating to the jurisdiction of the 1 One confined in prison does not become domiciled in the prison. Grant v. Dalliber, 11 Conn. 234 ; Barton v. Barton, 74 Ga. 761. So one forcibly removed from his home by military authorities does not lose his domicile. Hardy v. De Leon, 5 Tex. 211. Paupers in a poorhouse do not acquire a domicile there. Clark v. Robinson, 88 111. 498. Contra, Sturgeon v. Korte, 34 Ohio St. 525. Political refugees do not ordinarily relinquish their domicile. De Bonneval v. De Bonneval, 1 Curt. Eccl. 856 ; Ennis v. Smith, 14 How. 400 {scmble) ; but see S. v. De Casinova, 1 Tex. 401. — Ed. 2 Part of the opinion only, involving the question of domicile, is given. — Ed. SECT- L ] DITSON V. DITSON. 211 court over her ease, and to the question of her domicile in this State, can hardly be imagined, than the case at bar. The petitioner is the .Kucrhter of a native of this State, who, though formerly resident in Boston, has for manv years past been domiciled in his native place, I ittle Compton. Whilst at school, the petitioner became acquainted with an Englishman of the name of Ditson, and, in 1842, married him, without the* knowledge or consent of her parents, in New York. Im- mediately after marriage the couple went to Europe, and from thence to Cuba," where thev lived together several years. Upon their return to this country, she. being in a feeble and emaciated condition, he de- serted her for the first time in Boston, and was absent in Europe, with- out leaving anv provision for her, for about two years. I pun his return, they appear to have lived together again ; he, however, giving everv indication of a morose as well as inattentive husband. After a short time, he deserted her again in Boston, declaring, upon his leaving it for Europe, that he cared nothing about it, or any person in it, point- ing, as the testimony is put to us, to his unfortunate wife He has be°en absent from her now between three and four years, without com- municating with her. or providing, though of sufficient ability, anything for her support, nor does she know where he is, except that he has gone to Europe. In the mean time, deserted as she was, she was obliged to return to her father's house in Little Compton ; where, during this time, supported bv him or by her own exertions, she has resided with the exception of about three months passed by her in Newport, Rhode Island For this desertion and neglect to provide for her, the proot, ex parte it is true, but coming from respectable sources, finds no excuse in her conduct, which, according to it, has always, so far as known, been that of a dutiful and faithful wife. . . . Whatever was the former domicile of the petitioner, we are satisfied that she is, and has, for up- wards of the last three years, been a domiciled citizen of Rhode Island, — her only home, in the house of her father. 1 i "The law will recognize a wife, as having a separate existence, and separate inter- ests and separate rights, in those cases where the express object of all proceedings is to h ;"atthe relation itself ought to be dissolved, or so modified as to establish sepa- rate interests, and especially a separate domicile and home, bed and board being put a pa t Tor the whole, as express* f the id I h Otherwise, the par,,,, in this Sspec would stand upoJ very unequal grounds, it being in the power ol the husband o change Ins domicile at will, but not in that of the wife. The husband might deprive he wit: of tie. ,n,ans of enforcing her rights, and ,n effect of the rights themselves and of the protection of the laws of the Commonwealth, at the same time that h,s own misconduet gives her a right to be resc 1 Iron, Ins power on account ol his . own «» conduct towards her." Shaw, C. J., in Bartean v. Karteau, 14 Pick. 181. Sh Zy acquire , separate domicile whenever it is « ssary or proper that she should do ,„ ' T he right springs from the necessity for its exercise, and endures as long as tin. necessity continues." Swayne, J., hi CI v,r „. Wil , 9 Wall. 108. Ace Haubury vHn bury 20 Ala. 629; Chapman .. Chapman, 129 111. 386 ; Hunt ,. Hunt, 72N.Y- 2l" S«, Tiverton v. Overton, 1 Sw. & T, 574; Maguire . Ma^uire 7 Dana 181. and see Hinds v. Hinds, l la. 86. 1" some jurisdictions it is held that if a wift If HWng apart from her husband for cans,, she rf, lor purposes of divorce, have a 212 LAMAK t>. MICOU. [CHAP. U. LAMAR •. MICOU. Supreme Court of the United States. 1SS4. arted 112 United Si s, 452.] This is an appeal by the executor of a guardian (Lamar) from a decree of the Circuit Court of the United States for the Southern Dis- trict of New York, in favor of the plaintiff, the administratrix of his ward. The bill prayed for an account of the ward's estate. The guardian alleged that the property had been lost through unfortunate investments ; and the question was whether the law which governed the duties of the guardian permit ted such investments. * Gf.ay..C An infant cannol change his own domicile. As infants have the domicile of their father, he may change their domicile by changing his own ; and after his death the mother, while she remains a widow, may likewise, by changing her domicile, change the domic! of the infants : the le of the children, in either case, following the independent domicile of their parent. Kennedy v. Ryall. 67 N. \. 37.' ; Potinger v. Wightman, 3 Meriv. 07 : Dedham v. Xatick. 16 Mass. 135: Dicey on Domicile. 97-99. But when the widow, by marrying again, acquires the domicile of a second husband, she does not. In- taking her children by the first husband to live with her there, make the domicile which she derives from her second husband their domicile : and the\ retain the domicile which they had. before her second mar- riage, acquired from her or from their father. Cumner v. Milton, 3 Salk. 259 ; s. c. Holt, 578 ; Freetown v. Taunton. 16 Mass. 52 ; School Directors v. James. 2 Watts & Sergeant. 568 : Johnson r. Copeland, 5 Alabama. 521 : Brown >:. Lynch. 2 Bradford. 214 : Mears c. Sinclair, 1 West Virginia, 185 ; Pothier*s Introduction Generate aux Coutumes. No. 19 ; 1 Burge Colonial and Foreign Law. 30 ; 4 Phillimore Inter- national Law (2d ed.i ? 97. The preference due to the law of the ward's domicile, and the im- portance of a uniform a Iministration of his whole estate, require that, as a general rule, the management and investment of his property separate domicile, and cannot claim that of her husband. White r. White, 18 R. I. 8, 27 Atl. 506 : Butcher v. Dutcher, 39 Wis. 651. r all purposes except that of bringing suit for divorce, the wife's domicile is that of her husband, even if she is living apart from him. Warrender v. Warrender, 9 Bligh, 103 : Dolphin v. Robbins. 7 H. L. C. 390 ; Christie's Succession, 20 La. Ann. 3S3 : Greene v. Windham, 13 Me 225 ; Green* Greene, 11 Pick. 410 ; Hackettstown E • . Mitchell, 28 N. 7 . L. 516. Contra, Shute v. Sargent, 67 N. H. 805, f, p. 211. If divorced from bed and board, however, the wife may and must have a separate domi- cile. Williams o. Dormer, 16 Jur. 366 ; Barbour v. Barbour, 21 How. 552. —Ed. « This short statement of facts, presenting such facts as (iu addition to those stated in the extract printed) are necessary for understanding so much of the case as is printed, is substituted for the statement by Mr. Justice Gray. Part of the opinion is omitted. — Eo SECT. I.] LAMAR V. M1C0U. 213 should be governed by the law of the State of his domicile, especially when he actually resides there, rather than by the law of any State in which a guardian may have been appointed or may have received some propertv°of the ward. If the duties of the guardian were to be exclu- sivelv regulated by the law of the State of his appointment, it would follow that in any case in which the temporary residence of the ward was changed from State to State, from considerations of health, educa- tion, pleasure, or convenience, and guardians were appointed in each State, the guardians appointed in the different States, even if the same persons, might be held to diverse rules of accounting for different parts of the ward's property. The form of accounting, so far as con- cerns the remedv only, must indeed be according to the law of the court in which relief is sought : but the general rule by which the guardian is to be held responsible for the investment of the ward's propertv is the law of the place of the domicile of the ward. Bar, In- ternational Law, § 106 (Gillespie's translation), 438; Wharton, Con- flict of Laws, § 259. It may be suggested that this would enable the guardian, by chang- ing the domicile of his ward, to choose for himself the law by which he should account. Not so. The father, and after his death the widowed mother, being the natural guardian, and the person from whom the ward derives his domicile, may change that domicile. But the ward does not derive a domicile from any other than a natural guardian. A testamentary guardian Dominated by the father may Gave Ene same control of the ward's domicile that the father had. Wood v. Wood. 5 Paige, 596, 605. And any guardian, appointed in the State of the domicile of the ward, has been generally held to have the power of changing the ward's domicile from one county to another within the same°State and under the same law. Cutts v. Haskins, 9 Mass. 543 : Holyoke v. Haskins, 5 Pick. 20 : Kirkland v. Whately, 4 Allen, 462 ; Anderson v. Anderson. 42 Vermont, 350; Ex parte Bartlett, 4 Brad- ford, 221 ; The Queen v. Whitby, L. R. 5 Q. B. 325. 331. But it is very doubtful, to say the least, whether even a guardian appointed in the State of the domicile of the ward (not being the natural guardian or a testamentary guardian) can remove the ward's domicile beyond the limits of the State in which the guardian is appointed and to which his legal authority is confined. Douglas v. Douglas, L. R. 12 Eq. 617, 625 ; Daniel v. Hill. 52 Alabama, 430 ; Story. Conflict of Laws, ?; 506, note ; Dicey on Domicile, 100, 132. And it is quite clear that a guard- ian appointed in a State in which the ward is temporarily residing can- not change the ward's permanent domicile from one State to another. The case of such a guardian differs from that of an executor of. or a trustee under, a will. In the one case, the title in the property is in the executor or the trustee ; in the other, the title in the property is in the ward, and the guardian lias only the custody and management of it, with power to change its investment The executor or trustee is appointed at the domicile of the testator; the guardian is most fitly -14 LAMAR V. M1C0U. [CHAP. U appointed at the domicile of the ward, and ma}- be appointed in any State in which the person or any property of the ward is found. The general rule which governs the administration of the property in the one case may be the law of the domicile of the testator ; in the other case, it is the law of the domicile of the ward. As the law of the domicile of the ward has no extraterritorial effect, except by the comity of the State where the property is situated, or where the guardian is appointed, it cannot of course prevail against a statute of the State in which the question is presented for adjudication, expressly applicabb to the estate of a ward domiciled elsewhere. Hoyt v. Sprague, 103 U. S. 613. Cases ma}- also arise with facts so peculiar or so complicated as to modify the degree of influence that the court in which the guardian is called to account may allow to the law of the domicile of the ward, consistently with doing justice to the par- ties before it. And a guardian, who had in good faith conformed to the law of the State in which he was appointed, might perhaps be ex- cused for not having complied with stricter rules prevailing at the domicile of the ward. But in a case in which the domicile of the ward has always been in a State whose law leaves much to the discretion of the guardian in the matter of investments, and he has faithfully and prudently exercised that discretion with a view to the pecuniary inter- ests of the ward, it would be inconsistent with the principles of equity to charge him with the amount of the moneys invested, merely because he has not complied with the more rigid rules adopted by the courts of the State in which he was appointed. The domicile of William W. Sims during his life and at the time of his death in 1850 was in Georgia. This domicile continued to be the domicile of his widow and of their infant children until they acquired new ones. In 1853, the widow, by marrying the Rev. Mr. Abercrom- bie, acquired his domicile. But she did not, by taking the infants to the home, at first in New York and afterwards in Connecticut, of her new husband, who was of no kin to the children, was under no legal obligation to support them, and was in fact paid for their board out of their property, make his domicile, or the domicile derived by her from him, the domicile of the children of the first husband. Immediately upon her death in Connecticut, in 1859, these children, both under ten years of age, were taken back to Georgia to the house of their father's mother and unmarried sister, their own nearest surviving relatives ; and the}- continued to live with their grandmother and aunt in Georgia until the marriage of the aunt in January, 1860, to Mr. Micou, a cit- izen of Alabama, after which the grandmother and the children resided with Mr. and Mrs. Micou at their domicile in that State. Upon these facts, the domicile of the children was always in Georgia from their birth until January, 1860, and thenceforth was either in Georgia or in Alabama. As the rules of investment prevailing before 1863 in Georgia and in Alabama did not substantially differ, the ques- tion in which of those two States their domicile was is immaterial to SECT. I.J I.A.MAE V. MICOU. 215 the decision of this case ; and it is therefore unnecessary to consider whether their grandmother was their natural guardian, and as such had the power to change their domicile from one State to another. See Hargrove's note 66 to Co. Lit. 88 b ; Reeve, Domestic Relations, 315; 2 Kent, Com. 219; Code of Georgia of 1861, §§ 1754, 2452; Darden v. Wyatt, 15 Georgia, 414. Whether the domicile of Lamar in December, 1855, when he was appointed in New York guardian of the infants, was in New York or in Georgia, does not distinctly appear, and is not material ; because, for the reasons already stated, wherever his domicile was, his duties as guardian in the management and investment of the property of his wards were to be regulated by the law of their domicile. On petition for re-hearing, Gray, J., said (114 U. S. 218) : If the domicile of the father was in Florida at the time of his death in 1850, then, according to the principles stated in the former opinion, the dom- icile of his children continued to be in that State until the death of their mother in Connecticut in 1859. In that view of the case, the question would be whether they afterwards acquired a domicile in Georgia by taking up their residence there with their paternal grand- mother. Although some books speak only of the father, or, in the case of his death, the mother, as guardian by nature (1 Bl. Com. 461 ; 2 Kent, Com. 219), it is clear that the grandfather or grandmother, when the next of kin, is such a guardian. Hargrave, note 66, to Co. Lit. 88 b ; Reeve, Dom. Rel. 315. See also, Darden v. Wyatt, 15 Ga. 414. In the present case, the infants, when their mother died and they went to the home of their paternal grandmother, were under ten years of age ; the grandmother, who appears to have been their only surviving grandparent and their next of kin, and whose only living child, an un- married daughter, resided with her, was the head of the family ; and upon the facts agreed it is evident that the removal of the infants after the death of both parents to the home of their grandmother in Georgia was with Lamar's consent. Under these circumstances, there can be no doubt that by taking up their residence with her, they acquired her domicile in that State in 1859, if their domicile was not already there. 1 1 The domicile of an infant follows that of his father : Metealf v. Lowther, .56 Ala. 312 ; Kennedy v. Ryall, 67 N. Y. 379 ; and so long as the infant is not emancipated he can obtain no other domicile, though living away from his father's home : Wheeler v. Burrow, 18 Ind. 14 ; even if he has run away from home : Bangor v. Rcadlicld, 32 Me. 60 ; or has been bound out to service by the public authorities : Oldtown v. Fal- mouth, 40 Me. 106. Upon the death of the father, the mother's domicile ordinarily becomes that of the minor, and if she being sui juris changes her domicile thai <>l* the child follows ; subject perhaps to the condition thai the change be made bonajide, and not for the purpose of securing an advantage at tip- expense of the child or the child's estate. Potinger v. Wightman, 3 Mcr. 67; Brown v. Lynch, 2 Bradf. 21 1 ; School Directors v. James, 2 W. & S. 568. A posthumous child, therefore, takes the domicile of the mother at its birth: Watson v. Bondurant, 30 La. Ann. 1303 (seinble). If, however, the mother marries again, since she is do lunger sui juris, she cannol affeel the domicile of the minor: School Directors v. .lames, 2 W. & S. 568 ; Allen v. Thompson, 11 Humph. 216 SHUTE V. SARGENT. [cHAl'. II. SHUTE v. SARGENT. Supreme Court of New Hampshire. 1892. [Re/iorted 67 New Hampshire, 305.] Blodgett, J. 1 The maxim that the domicile of the wife follows that of her husband "results from the general principle that a person who i? under the power and authority of another possesses no right to choose a domicile.''" Story, Confl. Laws, s. 46. "By marriage, husband and wife become one person in law, — that is, the very being or legal exist- ence of the wife is suspended during the marriage, or at least is incor- porated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything." 1 Bl. Com. 442. Such being the common-law status of the wife, her domicile necessarily fol- 536 (contra, Succession of Lewis, 10 La. Ann. 789 ; and see Wheeler v. Hollis, 19 Tex. 522) ; and therefore if the mother remarries before the birth of the posthumous child, the child takes the domicile of its mother before the second marriage : Oxford v. Bethany, 19 Conn. 229. An infant does not get the domicile of an appointed guardian ex officio if the infant actually lives elsewhere. Louisville v. Sherley, 80 Ky. 71 ; School Directors v. James, 2 W. & S. 568 ; Petigru v. Ferguson, 6 Rich. Eq. 378. The guardian may, however, change the infant's domicile by changing the actual home of the infant within the State. Kirkland v. Whately, 4 All. 462 ; contra, Marheineke v. Grothaus, 72 Mo. 204. He cannot, however, change the ward's domicile outside the State, since his authority over the ward's person ceases at the State line. Douglas v. Douglas, L. R. 12 Eq. 617, 625; Robins v. Weeks, 5 Mart. N. s. 379 ; Trammell v. Trammell, 20 Tex. 406 ; but see Wood v. Wood, 5 Paige, 596, 605; Wheeler v. Hollis, 19 Tex. 522. .4 fortiori such a change cannot be made without the guardian's consent. Hiestand v. Kuns, 8 Blackf. 345 ; Munday v. Baldwin, 79 Ky. 121. An emancipated minor may acquire a new domicile by his own will : Lubec v. Last- port, 3 Me. 220 ; and such minor no longer shares a new domicile acquired by the father: Lowell v. Newport, 66 Me. 78; or by the mother, after the father's death: Dennysville v. Trescott, 30 Me. 470 ; Charlestown v. Boston, 13 Mass. 469. After emancipation the father cannot change the child's domicile. In re Vance, 92 Cal. 195, 28 Pac. 229. In Georgia, where a guardian has no right to restrain the person of a ward twenty years old, such a ward may acquire a domicile by his own choice. Roberts v. Walker, 18 Ga. 5. An apprentice takes the domicile of his master. Madilox v. S., 32 Ind. 111. An insane person, though under guardianship, may yet change his domicile if he in fact retains sufficient power of will. Culver's Appeal, 48 Conn. 165; Concord v. Rumney, 45 N. H. 423; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13. A person non compos from birth, continuing to live in his father's family after reaching his major- ity, follows his father's domicile. Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Monroe v. Jackson, 55 Me. 55 ; Upton v. Northbridge, 15 Mass. 237. If such a person has an appointed guardian, the latter may change the domicile of the ward into his own fam- ily by making him an inmate of it : Holyoke v. Haskins, 5 Pick. 20 ; Jackson v. Polk, 19 Ohio S. 28 ; or even, it has been held, to a new independent home : Anderson v Anderson, 42 Vt. 350. It has been held that if one non compos becomes emancipated by the death of his parents and the failure of appointment of a guardian, he may gain a residence where he actually lives. Gardiner v. Farmington, 45 Me. 537. — Ed. 1 The opinion only is given : it sufficiently .states the case. — Ed. SECT. I.] SHUTE V. SARGENT. 217 lowed her husband's, and the maxim applied without limitation or qualification. But the common-law theory of marriage has largely ceased to obtain everywhere, and especially in this State, where the law has long recog- nized the wife as having a separate existence, separate rights, and separate interests. In respect to the duties and obligations which arise from the contract of marriage and constitute its object, husband and wife are still, and must continue to be, a legal unit ; but so completely has the ancient unity become dissevered, and the theory of the wife's servitude superseded by the theory of equality which has been estab- lished by the legislation and adjudications of the last half century, that she now stands, almost without an exception, upon an equality with the husband as to property, torts, contracts, and civil rights. Pub. Sts., c. 176; ib., c. 90, s. 9 ; Seaver v. Adams, 66 N. H. 142, 143, and au- thorities cited. And since the law puts her upon an equality, so that he now has no more power and authority over her than she has over him, no reason would seem to remain why she may not acquire a sepa- rate domicile for every purpose known to the law. If, however, there are exceptional cases when for certain purposes it might properly be held otherwise, there can be in this jurisdiction no reason for holding that when the husband has forfeited his marital rights by his misbe- havior, the wife may not acquire a separate domicile, and exercise the appertaining rights and duties of citizenship with which married women have become invested. To hold otherwise would not only break the line of consistency and progress which has been steadily advanced until the ancient legal distinctions between the sexes, which were adapted to a condition that has ceased to exist and can never return, have been largely swept away, but it would also be subversive of the statutory right of voting and being elected to office in educational matters which wives now possess (Pub. Sts., c. 90, ss. 9, 14), inasmuch as it would compel the innocent wife to reside and make her home in whatever voting precinct the offending husband might choose to fix his domicile, or to suffer the deprivation of the elective franchise ; and if he should remove his domicile to another State, and she should remain here, the exercise of all her rights dependent upon domicile would be similarly affected. This cannot be the law. On the contrar}-, the good sense of the thing is, that a wife cannot be divested of the right of suffrage, or be deprived of any civil or legal right, by the act of her husband ; and so we take the law to be. Whenever it is necessary or proper for her to acquire a separate domicile, she may do so. This is the rule for the purposes of divorce (Payson v. Pay son, 34 N. II. 518; Cheever v. Wilson, 9 Wall. 108, 124; Ditson v. Ditson, 4 R. I. 87, 107; Harding v. Alden, 9 Greenl. 140), and it is the true rule for all purposes. Upon these views, the testatrix was domiciled in this Stale at the time of her decease, and, as the consequence, distribution of her estate is to be made accordingly. Goodall v. Marshall, 11 N. II. 88 ; Vande- 218 BERGNER & ENGEL BREWING CO. V. DREYFUS. [CHAP. II. walker v. Rollins, 63 N. H. 460, 463, 464. The rights of her husband therein are not affected by his written assent to the will. The Massa- chusetts statute, making such assent binding, has no extraterritorial force, and there is no principle upon which it can be given effect in this jurisdiction without violating the positive enactments of our statute relative to the husband's distributive share in his deceased wife's estate. Pub. Sts., c. 195, ss. 12, 13. This cannot be done. If the result shall be to give to this husband a benefit which the testatrix did not intend he should receive, and which in justice he ought not to have, it is to be regretted ; but hard cases cannot be permitted to make bad equity any more than bad law. Case discharged. 1 BERGNER & ENGEL BREWING CO. v. DREYFUS. Supreme Judicial Coukt of Massachusetts. 1898. [Reported 172 Massachusetts, 154.] Holmes, J. 2 This is a suit by a Pennsylvania corporation to recover a debt for goods sold and delivered here. The only defence is a dis- charge in insolvency under our statutes, which of course commonly is no defence at all. This was reaffirmed unanimously in 1890, after full consideration of the objections now urged ; and it was decided also, not for the first time, that the general language of the insolvent law was not intended to affect access to Massachusetts courts b} r a local rule of procedure unless the substantive right was barred b} T the dis- charge. Phoenix National Bank v. Batcheller, 151 Mass. 589. The grounds urged for an exception in the present case are : that the plain- tiff, although its brewery and main offices are in Pennsylvania, has an office in Boston, and maintains here a complete outfit for the distribu- tion of its products ; that it has a license of the fourth class under Pub. Sts. c. 100, § 10; and that it has complied with the laws regulating foreign corporations doing business here, including, we assume, that which requires the appointment of the commissioner of corporations its " attorney upon whom all lawful processes in any action or proceed- ing against it may be served." St. 1884, c. 330, § 1. See St. 1895, c. 157. . . . The independent ground on which it is urged that the plaintiff is subject to the insolvent law in the present case is that the plaintiff is domesticated in this State, as shown by the facts above recited, of which the appointment of an attorney is only one. The word " domesticated," which was used in the argument for the defend- ant, presents no definite legal conception which has an}' bearing upon the case. We presume that it was intended to convey in a conciliatory form the notion that the plaintiff was domiciled here, — " resident," in 1 Ace. In re Florance, 54 Hun, 328. —Ed. 2 The statement of facts and part of the opinion are omitted. — Ed. SECT. I.] BEKGNEB & ENGEL BREWING CO. V. DREYFUS. 219 the language of Pub. Sts. c. 157, § 81, — and therefore barred by the language and legal operation of the act. It could not be contended that the corporation was a citizen of Massachusetts. In such sense as it is a citizen of any State, it is a citizen of the State which creates it and of no other. But there are even greater objections to a double domicile than there are to double citizenship. Under the law as it has been, a man might find himself owing a double allegiance without any choice of his own. But domicile, at least for an}- given purpose, is single by its essence. Dicey, Confl. of Laws, 95. A corporation does not differ from a natural person in this respect. If any person, natural or artificial, as a result of choice or on technical grounds of birth or creation, has a domicile in one place, it cannot have one elsewhere, be- cause what the law means by domicile is the one technically pre-eminent headquarters, which, as a result either of fact or of fiction, everj' person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined. It is settled that a corporation has its domicile in the jurisdiction of the State which created it, and as a consequence that it has not a domicile anywhere else. Boston Investment Co. v. Boston, 158 Mass. 461, 462, 'W • Shaw v. Quincy Mining Co., 145 IT. S. 444, 450; Martine v. In- ternational Ins. Co., 53 N. Y. 339, 346. The so-called modifications of this rule by statutes like the act of 1884 do not modify it, because jurisdiction of the ordinary personal actions does not depend upon domicile, but only upon such presence within the jurisdiction as to make service possible. See In re Hohorst, 150 U. S. 653. But the operation of our insolvent law by its very terms may, and in this case does, de- pend upon the domicile of the creditor, and as there can be no doubt either in fact or in law that the plaintiff was domiciled in Pennsylvania in such a sense that a statute like Pub. Sts. c. 157, § 1, would hit it there, it cannot have been domiciled here for the same purpose at the same time. Judgment for the plaintiff affirmed} Field, C. J., dissenting. 1 Ace. Germania F. I. Co. v. Francis, 11 Wall. 210 ; Cook v. Hager, 3 Col. 386 ; Chafee v. Fourth Nat. Bank, 71 Me. 514 ; B. & 0. R. R. v. Glenn, 28 Md. 287. Dicta in the English cases are, however, contra. Newby v. Van Oppen, L. R. 7 Q. B. 293; Russell v. Cambefort, 23 Q. B. D. 526. "I think that this company aiay properly be deemed both Scotch and English. It may, for purposes of juris- diction, be deemed to have two domiciles. Its business is necessarily carried on by agents, and I do not know why its domicile should be considered to be confined to tho place where the goods are manufactured. The business transacted in England is very extensive. The places of business may, for the purposes of jurisdiction, properly be deemed the domicile." — Lord St. Leonards in Carron Iron Co. v. Maclaren 5 H. L C. 416, 449. — Ed. In Martine v. International L. Ins. Soc, 53 N. Y. 339, an English company with a permanent general agency in New York was held, as to business done through such agency, to have, in time of war, a commercial (though not an ordinary civil) domicile in New York. 220 HAYS V. PACIFIC MAIL STEAMSHIP CO. [CHAP. II. HAYS v. PACIFIC MAIL STEAMSHIP CO. Supreme Court of the United States. 1855. [Reported 17 Hoicard, 596.] Nelson, J. This is a writ of error to the District Court for the Northern District of California. The suit was brought in the District Court by the compan}', to recover back a sura of money which they were compelled to pay to the defendant, as taxes assessed in the State of California, upon twelve steamships belonging to them, which were temporarily within the juris- diction of the State. The complaint sets forth that the plaintiffs are an incorporated com- pany by the laws of New York ; that all the stockholders are residents and citizens of that State ; that the principal office for transacting the business of the company is located in the city of New York, but, for the better transaction of their business, they have agencies in the city of Panama, New Grenada, and in the city of San Francisco, Califor- nia; that the}' have, also, a naval dock and shipyard at the port of Benicia, of that State, for furnishing and repairing their steamers ; that, on the arrival at the port of San Francisco, they remain no longer than is necessary to land their passengers, mails, and freight, usually done in a day ; they then proceed to Benicia, and remain for repairs and refitting until the commencement of the next voyage, usually some ten or twelve days ; that the business in which they are engaged is in the transportation of passengers, merchandise, treasure, and the United States mails, between the city of New York and the city of San Francisco, by way of Panama, and between San Francisco and different ports in the Territory of Oregon ; that the company are sole owners of the several vessels, and no portion of the interest is owned by citizens of the State of California ; that the vessels are all ocean steamships, employed exclusively in navigating the waters of the ocean ; that all of them are duly registered at the custom-house in New York, where the owners reside ; that taxes have been assessed upon all the capital of the plaintiffs represented by the steamers in the State of New York, under the laws of that State, ever since they have been employed in the navigation, down to the present time; that the said steamships have been assessed in the State of California and county of San Francisco, for the year beginning 1st July, 1851, and ending 30th June, 1852, claiming the assessment as annually due, under an act of SECT. II.]' HAYS V. PACIFIC MAIL STEAMSHIP CO. 221 the legislature of the State ; that the taxes assessed amount to 811.962.50. and were paid under protest, after one of the vessels was advertised for sale by the defendant, in order to prevent a sale of it. To this complaint the defendant demurred, and the court below gave judgment for the plaintiffs. By the 3d section of the Act of Congress of 31st December, 1792, it is provided that every ship or vessel, except as thereafter provided, shall be registered by the collector of the district, in which shall be comprehended the port to which the ship or vessel shall belong at the time of her registry, and which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, nearest to the place where the husband, or acting and managing owner, usually resides ; and the name of the ship, and of the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters of not less than three inches in length; and if any ship or vessel of the United States shall be found without having her name. and the name of the port to which she belongs, painted in the manner mentioned, the owner or owners shall forfeit fifty dollars. And by the Act of 29th July, 18.50 (9 Stats, at Large, 440), it is provided that no bill of sale, mortgage, or conveyance of any vessel shall be valid against any person other than the grantor, etc., and per- sons having actual notice, unless such bill of sale, mortgage, or convev- ance be recorded in the office of the collector of the customs where such vessel is registered or enrolled. These provisions, and others that might be referred to, very clearly indicate that the domicile of a vessel that requires to be registered, if we may so speak, or home port, is the port at which she is registered, and which must be the nearest to the place where the owner or owners reside. In this case, therefore, the home port of the vessels of the plaintiffs was the port of New York, where they were duly registered, and where all the individual owners are resident, and where is also the principal place of business of the company ; and where, it is admitted, the capital invested is subject to State, county, and other local taxes. These ships are engaged in the transportation of passengers, mer- chandise, etc., between the city of New York and San Francisco, by the way of Panama, and between San Francisco and different ports in the territory of Oregon. They are thus engaged in the business and commerce of the country, upon the highway of nations, touching at such ports and places as these great interests demand, and which hold out, to the owners sufficient inducements by the profits realized or ex- pected to be realized. And so far as respects the ports and harbors within the United States, they are entered and cargoes discharged or laden on board, independently of any control over them, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the genera] government, to which belongs the regulation of commerce with foreign ,; ons and between the States. 222 HAYS V. PACIFIC MAIL STEAMSHIP CO. [CHAP. II. Now, it is quite apparent that if the State of California possessed the authority to impose the tax in question, any other State in the Union, into the ports of which the vessels entered in the prosecution of their trade and business, might also impose a like tax. It may be that the course of trade or other circumstances might not occasion as great a delay in other ports on the Pacific as at the port of San Francisco. But this is a matter accidental, depending upon the amount of business to be transacted at the particular port, the nature of it, necessary repairs, etc., which in no respect can affect the question as to the situs of the property, in view of the right of taxation by the State. Besides, whether the vessel, leaving her home port for trade and commerce, visits, in the course of her voyage or business, several ports, or confines her operations in the carrying trade to one, are questions that will depend upon the profitable returns of the business, and will furnish no more evidence that she has become a part of the personal property within the State, and liable to taxation at one port than at the others. She is within the jurisdiction of all or any one of them tempo- rarily, and for a purpose wholly excluding the idea of permanently abid- ing in the State, or changing her home port. Our merchant vessels are not unfrequently absent for years, in the foreign carrying trade, seeking cargo, carrying and unlading it from port to port, during all the time absent ; but they neither lose their national character nor their home port, as inscribed upon their stern. The distinction between a vessel in her home port and when lying at a foreign one, or in the port of another State, is familiar in the admiralty law, and she is subjected, in many cases, to the application of a different set of principles. 7 Pet. 324 ; 4 Wheat. 438. We are satisfied that the State of California had no jurisdiction over these vessels for the purpose of taxation ; they were not, properly, abiding within its limits, so as to become incorporated with the other personal property of the State ; they were there but temporarily, en- eao-ed in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid. An objection is taken to the recovery against the collector, on the ground, mainly, that the assessment under the law of California, by the assessors, was a judicial act, and that the party should have pur- sued his remedy to set it aside according to the provisions of that law. We do not think so. The assessment was not a judicial, but a ministerial act, and as the assessors exceeded their powers in making it, the officer is not protected. The payment of the tax was not voluntary, but compulsory, to pre- vent the sale of one of the ships. Our conclusion is, that the judgment of the court below is right, and should be affirmed. 1 i Arc. Johnson v. Debary-Baya Merchants' Line, 37 Fla. 499, 19 So. 640; Roberts v. Charlevoix, 60 Mich. 197 ; S. v. Haight, 30 N. J. L. 428. So generally as to- SECT. II.] HOYT V. COMMISSIONERS OF TAXES. 223 HOYT v. COMMISSIONERS OF TAXES. Court ok Appeals of New Yoke. 1861. [Reported 23 New York; 224.] Comstock, C. J. The legislature, in defining property which is liable to taxation, have used the following language: "All lands and all personal estate icithin this State, whether owned by individuals or corporations, shall be liable to taxation subject to the exemptions here- inafter specified." (1 R. S., 387, § 1.) The title of the act in which this provision is contained, is, " of the property liable to taxation," and it is in this title that we ought to look for controlling definitions on the subject. Other enactments relate to the details of the system of taxation, to the mode of imposing and collecting the public burdens, and not to the property or subject upon which it is imposed. In order, therefore, to determine' the question now before us, the primary requisite is to interpret justly and fairly the language above quoted. " All lands and all personal estate within this State shall be liable to taxation." If we are willing to take this language, without attempt- ing to obscure it by introducing a legal fiction as to the situs of personal estate, its meaning would seem to be plain. Lands and personal property having an actual situation within the State are tax- able, and by a necessary implication no other property can be taxed. I know not "in what language more appropriate or exact the idea could have been expressed. Real and personal estate are included in pre- cisely the same form of expression. Both are mentioned as being within the State. It is conceded that lands lying in another State or countrv, cannot be taxed against the owner resident here, and no one ever "supposed the contrary. Yet it is claimed that goods and chattels situated in Louisiana, or in France, can be so taxed. The legislature I suppose could make this distinction, but that they have not made it, in the language of the statute is perfectly clear. Nor is the reason apparent why such a distinction should be made. Lands have an actual situs, which of course is immovable. Chattels also have an actual situs, although they can be moved from one place to anotner. Both are equally protected by the laws of the State or sov- ereignty in which they are situated, and both are chargeable there with public burdens, according to all just principles of taxation. A purely poll tax has no respect to property. We have no such tax. With us taxation is upon property, and so it is in all the States of the Union. So also in general, it is in all countries. The logical result is, that the tax is incurred within the jurisdiction and under the laws of the country where it is situated. If we say that taxation is on the person property merely in transitu. Standard Oil Co. v. Bachelor, 89 Ind. 1 ; Conley v. Che- die, 7 Nev. 336 ; Robinson v. Longley, 18 Nev. 71 ; see Carrier v. Gordon, 21 Oh. & 605.— Ed 224 HOYT V. COMMISSIONERS OF TAXES. [ CHAP. II. in respect to the property, we are still without a reason for assessing the owner resident here, in respect to one part of his estate situated elsewhere, and not in respect to another part. Both, I repeat, are the subjects of taxation in the foreign jurisdiction. If then the owner ought to be subjected to a double burden as to one, why not as to the other also ? I find then no room for interpretation, if we take the words of the statute in their plain ordinary sense. The legislative definition of taxable property refers in that sense to the actual situs of personal not less than real estate. If the intention had been different, it cannot he doubted that different language would have been used. It would have been so easy and so natural to have declared that all lands within this State, and all personal property wherever situated, owned by residents of this State, shall be liable to taxation, that we should have expected just such a declaration, if such had been the meaning of the law-making power. To me, it is evident that the legislature were not enunciating a legal fiction which, as we shall presently see, expresses a rule of law in some circumstances and relations, but which in others is not the law. They were speaking in plain words, and to the plain understanding of men in general. When the)' said all real and all personal estate within this State, I see no room for a serious doubt that the)' intended property actually within the State wherever the owner might reside. It is said, however, that personal estate by a fiction of law has no situs away from the person or residence of the owner, and is always deemed to be present with him at the place of his domicile. The right to tax the relator's property situated in New Orleans and New Jersey, rests upon the universal application of this legal fiction ; and it is accordingly insisted upon as an absolute rule or principle of law which, to all intents and purposes, transfers the property from the foreign to the domestic jurisdiction, and thus subjects it to taxation under our laws. Let us observe to what results such a theory will lead us. The necessary consequence is, that goods and chattels actually within this State are not here in any legal sense, or for any legal purpose, if the owner resides abroad. They cannot be taxed here, because they are with the owner who is a citizen or subject of some foreign State. On the same ground, if we are to have harmonious rules of law, we ought to relinquish the administration of the effects of a person resident and dying abroad, although the claims of domestic creditors may require such administration. So, in the case of the bankruptcy of such a person, we should at once send abroad his effects, and cannot consist- ently retain them to satisfy the claims of our own citizens. Again, we ought not to have laws for attaching the personal estate of non-residents, because such laws necessarily assume that it has a situs entirely distinct from the owner's domicile. Yet we do in certain cases administer upon goods and chattels of a foreign decedent ; we refuse to give up the effects of a bankrupt until creditors here are paid ; and we have laws SECT. II.] IH'YT V. COMMISSIONERS OF TAXES. of attachment against the effects of non-resident debtors. These, and other illustrations which might be mentioned, demonstrate that the fiction or maxim mobilia personam s< quuntur is by no means of universal application. Like other Actions, it has its special uses. It may be resorted to when convenience and justice so require. In other circumstances the truth and not the fiction affords, as it plainly ought to afford, the rule of action. The proper use of legal fictions is to prevent injustice, according to the maxim, in fictiont juris semper m'piitas existat. "No fiction." says Blackstone, "shall extend to work an injury ; its proper operation being to prevent a mischief or remedy an inconvenience, which might result from the general rule of law." So Judge Story, referring to the situs of goods and chattels. observes: ik The general doctrine is not controverted, that although movables are for many purposes to be deemed to have no situs, except that of the domicile of the owner, yet this being but a legal fiction it yields whenever it is necessary, for the purpose of justice, that the actual situs of the thing should be examined." He adds quite perti- nently, I think, to the present question, " A nation within whose territory any personal property is actually situated, lias an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there/' (Confl. of Laws, § 550.) I can think of no more just and appropriate exercise of the sovereignty of a State or nation over property, situated within it and protected by its laws, than to compel it to contribute toward the maintenance of govern- ment and law. Accordingly there seems to be no place for the fiction of which we are speaking, in a well-adjusted system of taxation. In such a system a fundamental requisite is that it be harmonious. But harmony does not exist unless the taxing power is exerted with reference exclusively either to the situs of the property, or to the residence of the owner. Both rules cannot obtain unless we impute inconsistency to the law, and oppression to the taxing power. Whichever of these rules is the true one, whichever we find to be founded in justice and in the reason of the thing, it necessarily excludes the other : because we ought to suppose, indeed we are bound to assume, that other States and Govern- ments have adopted the same rule. If then proceeding on the true principles of taxation, we subject to its burdens all goods and chattels actually within our jurisdiction, without regard to the owner's domicile, it must be understood that the same rule prevails everywhere. If we also proceed on the opposite ride, and impose the tax on account of the domicile, without regard to the actual situs, while the same property is taxed in another sovereignty by reason of its situs there, we necessarily subject the citizen to a double burden of taxation. For this no sound reason can be L r iven. To put a strong ease. The owner of a southern plantation with his thousand slaves upon it. may perfer to reside and spend his income in New York Our laws protect him in his person as a citizen of the State, and for this the State receives a sufficient con- 226 HOYT V. COMMISSIONERS OF TAXES. [cjIAP. II. sideration without taxing the capital which it does not protect. Under our laws can we tax the wealth thus invested in slave property ? They ignore, on the contrary, the very existence of such property, and therefore there is no room for the fiction according to which, and only according to which, the situs is supposed to be here. But if we could make room for that fiction, still it remains to be shown that some rule of reason or principle of equity can be urged in favor of such taxation. This cannot be shown, and the attempt has not been made. We may reverse the illustration. A citizen and resident of Massa- chusetts may own a farm in one of the counties of this State, and large wealth belonging to him may be invested in cattle, in sheep or horses which o-raze the fields, and are visible to the eyes of the taxing power. Now these goods and chattels have an actual situs, as distinctly so as the farm itself. Putting the inquiry then with reference to both, are they " real estate and personal estate within this State" so as to be subject to taxation under that definition ? It seems to me but one answer can be given this question, and that answer must be according to the actual truth of the case. If we take the fiction instead of the truth, then the situs of these chattels is in Massachusetts, and they are not within this State. The statute means one thing or the other. It cannot have double and inconsistent interpretations. And as this is impossible so we cannot, under and according to the statute, tax the citizen of Massachusetts in respect to his chattels here, and at the same time tax the citizen of New York in respect to his chattels having an actual situs there. In both cases the property must be " within this State," or there is no right to tax it at all. It cannot be true in fact, if a Massachusetts man owns two spans of horses, one of which draws his carriage at home and the other is kept on his farm here, that both are within the State. It cannot be true by any legal intendment, because the same intendment which locates one of them here, must locate the other abroad and beyond the taxing power. It seems to follow then inevitably that before we can uphold the tax which has been imposed upon the relator's property situated in New Orleans and New Jersey, we must first determine, that if he resided there, and the same goods and chattels were located here, they could not be taxed as being within the State. Such a determination I am satisfied would contravene the plain letter of the statute as well as all sound principles underlying the subject. 1 1 The remainder of the opinion is omitted. Ace. Dunleith v. Rogers, 53 111. 45 ; Leonard v. New Bedford, 16 Gray, 292; S. v. Ross, 23 N. J. L. 517 ; Hardesty v. Fleming, 57 Tex. 395. " We have no difficulty in disposing of the last condition of the question, namely : the fact, if it be a fact, that the property was owned by persons residing in another State ; for, if not exempt from taxation for other reasons, it cannot be exempt by reason of being owned by non-residents of the State. We take it to be a point settled beyond all contradiction or question, that a State has jurisdiction of all persons and things within its territory which do not belong to some other jurisdiction, such as the representatives of foreign governments, with their houses and effects, and property SECT. II.] McKEEN V. COUNTY OF NORTHAMPTON. 22' McKEEN v. COUNTY OF NORTHAMPTON. Supreme Coukt of Pennsylvania. 1865. [Reported 49 Pennsylvania, 519.] Agnew, J. James McKeen is the owner of four hundred and sev- enty-two shares of the capital stock of a manufacturing compau}', incorporated under the laws of New Jersey, doing business and hold- ing its property in Warren county in that State. McKeen himself is a resident of p]aston, Pennsylvania, and the question is, whether his stock is taxable here for State and count}' purposes. The taxing power rests upon the reciprocal duties of protection and support between the State and the citizen, and the exclusive sover- eignty and jurisdiction of the State over the persons and property within its territor}*. In McCullough v. The State of Maryland, 4 Wheat. 487, Marshall, C. J., remarks of the taxing power: "It is obvious that it is an incident of sovereignty, and is co-extensive with that to which it is incident. All subjects over which the sovereign power of a State extends are objects of taxation ; but those over which it does not extend are, upon the soundest principles, exempt from taxation." Story, in his Conflict of Laws, § 19, sa}'s : "The sovereign has power and authority over his subjects, and over the property which they possess within his dominions." See Id. §§ 18 and 20. The defendant below being a citizen of this State, it is clear he is subject personally to its power to tax, and that all his property accom- panying his person, or falling legitimately within the territorial juris- diction of the State, is equally within this authority. The interest which an owner of shares has in the stock of a corporation is personal. Whithersoever he goes it accompanies him, and when he dies his domi- cile governs its succession. It goes to his executor or administrator, and not to the heirs, and is carried into the inventory of his personal effects. When it is argued, therefore, that the foundry, machine-shop, and other estate of the corporation, being within the State of New Jerse}*, are subject wholly to the same exclusive State jurisdiction there which we claim for this State over property within its territory, another ownership is stated and a new issue introduced. But to that property the defendant below bus no title ; his title being in the shares he holds, and not in the property of the corporation. No execution against him there would sell a spark of right to it, nor would his heirs at law suc- belonging to or in the use of the Government of the United States. If the owner of persona] property within a Stat*- resides in another State which taxes him for thai property as part of his general estate attached to his person, this action of the latter State does not in the least affect the right of the State in which the property is situated to tax it also. It is hardly necessary to cite authorities <>n a point so elemen- tary." — Bradley, J., in Coe v. Errol, 116 U. S. 617 (188«). Ace Wiukley v. New- ton. 67 X. H. 80; 36 All. 610. — Ki>. 228 McKEEN V. COUNTY OF NORTHAMPTON. [CHAP. II. ceed to any estate in it. Unquestionably it may be taxed as the prop- erty of the corporation in New Jersey ; but the ownership there is that of the corporation, the legal entity, and not of the natural persons who own the shares of its stock. The stock of individuals may be controlled, to a certain extent, in New Jersey to make it liable to the claims of their domestic creditors, or legatees and next of kin. Even ancillary administration may be granted there to preserve the estate for resident claimants. But even then the residue of McKeen's stock would be remitted to the executors or administrators of the domicile in Pennsylvania, and the right of succession would be governed by our laws ; thus proving that though local authority may attach to the stock for special purposes, its owner- ship has its legal situs at the domicile of the owner. There is abun- dant authority for this : Mothland v. Wireman, administrator of ThOrnburg, 3 Penn. 185 ; Miller's Estate, 3 Rawle, 312; Stokely's Es- tate, 7 Harris, 476 ; Dent's Appeal, 10 Id. 514. Another feature is noticeable. In the exercise of the authority to tax, the proceeding is personal only. Though different kinds of prop- erty are specified as the subjects of taxation, it is not as a proceeding in rem, but only as affording the means and measure of taxation. The tax is assessed personally, and the means of enforcement is a warrant against the person of the owner, and any property he has whether taxed or not: Act loth April, 1834, §§ 20, 21 ; Purd. 1861, pp. 938-939. We have authorities directly upon this question deciding the prin- ciple, though upon a different species of tax — the collateral inheritance tax : In re Short's Estate, 11 Harris, 63. The decedent, a resident of Philadelphia, owned half a million of dollars in stocks and corporations of other States, and bonds of the State of Kentucky, and a bank de- posit in New York ; all were held to be subject to the collateral inher- itance tax here. Gibson, C. J., opens his opinion by stating : " That Mr. Short's property out of the State subjected him to personal liability for taxes assessed on it here in his lifetime, is not to be doubted. The general rule is, that the situs of personal property follows the domicile of the owner of it, insomuch that even a creditor cannot reach it in a foreign country, except by attachment or some other process provided by the local law; certainly not by a personal action, without appear- ance or something equivalent to it." To the same effect is the case of Hood's Estate, 9 Harris, 106 ; the difference of domicile merely lead- ing to an opposite result. The court below was right in entering judgment for the whole amount of the taxes, State and county. The question of liability for county taxes is disposed of in the opinion just read in the case of Whitesell v. Northampton County. Judgment affirmed. 1 i Ace. Seward v. Rising Sun, 79 Ind. 351 ; Dwight v. Boston, 12 All. 316 ; Hall v. Fayetteville, 115 N. C. 281, 20 S. E. 373 ; Bradley v. Bander, 36 Oh. S. 28 ; Dyer w. Osburn, 11 R. I. 321. " In the absence of constitutional restrictions, the citizen may be taxed in the dis- sect.il] state tax o.\- foreign-held bonds. 229 STATE TAX ON FOREIGN-HELD BONDS. Supreme Court of the United States. 1873. [Reported.15 Wallace, 300.] Field, J. 1 The question presented in this case for our determination is whether the eleventh section of the Act of Pennsylvania of May, 1868, so far as it applies to the interest on bonds of the railroad company, made and payable out of the State, issued to and held by non-residents of the State, citizens of other States, is a valid and constitutional exer- cise of the taxing power of the State, or whether it is an interference, under the name of a tax, with the obligation of the contracts between the non-resident bondholders and the corporation. If it be the former, this court cannot arrest the judgment of the State court ; if it be the latter, the alleged tax is illegal, and its enforcement can be restrained. The case before us is similar in its essential particulars to that of The Railroad Company v. Jackson, reported in 7 Wallace. There, as here, the company was incorporated by the legislatures of two States, Penn- sylvania and Maryland, under the same name, and its road extended in a continuous line from Baltimore in one State to Sunbury in the other. And the company had issued bonds for a large amount, drawing inter- est, and executed a mortgage for their security upon its entire road, its franchises and fixtures, including the portion lying in both States. Coupons for the different instalments of interest were attached to each bond. There was no apportionment of the bonds to any part of the road lying in either State. The whole road was bound for each bond. The law of Pennsylvania, as it then existed, imposed a tax on money owing by solvent debtors of three mills on the dollar of the principal, payable out of the interest. An alien resident in Ireland was the holder of some of the bonds of the railroad company, and when he presented his coupons for the interest due thereon, the company claimed the right to deduct the tax imposed by the law of Pennsylvania, and also an al- leged tax to the United States. The non-resident refused to accept the interest with these deductions, and brought suit for the whole amount in the Circuit Court of the United States for the District of Maryland. That court, the chief justice presiding, instructed the jury that if the cretion of the legislature, either personally, by way of poll-tax, or upon the value of his property, wherever situate or however elsewhere taxed, to such extent as the public exigencies may require. . . . The very nature of choses in action is that they have no locality, but follow the person of the owner. As they sometimes virtually represent property that is situated elsewhere, and it may Le taxed elsewhere, there is in some eases a double taxation ; but this results from our peculiar situation, and although undoubt- edly to be avoided, and not to be assumed as intended without plain enactments ad- mitting of no other reasonable interpretation, yet so far as it is produced by that conflict of laws which arises from a variety of sovereignties so intimately connected as ours, it frequently cannot be avoided, and at all events has not been attempted to be prevented, by either the national or the State constitutions." Elmkk, J., in State v. Bentley, 23 N. J. L. 532 (1852). Ed. 1 The opinion only is given. - Ed. 230 STATE TAX ON FOREIGN-HELD BONDS. [CHAP. II. plaintiff, when he purchased the bonds, was a British subject, resident in Ireland, and still resided there, he was entitled to recover the amount of the coupons without deduction. The verdict and judgment were in accordance with this instruction, and the case was brought here for review. This court held that the tax under the law of Pennsylvania could not be sustained, as to permit its deduction from the coupons held by the plaintiff would be giving effect to the acts of her legislature upon prop- erty and effects lying beyond her jurisdiction. The reasoning by which the learned justice, who delivered the opinion of the court, reached this conclusion, rnaj' be open, perhaps, to some criticism. It is not per- ceived how the fact that the mortgage given for the securit} - of the bonds in that case covered that portion of the road which extended into Mary- land could affect the liability of the bonds to taxation. If the entire road upon which the mortgage was given had been in another State, and the bonds had been held by a resident of Pennsylvania, they would have been taxable under her laws in that State. It was the fact that the bonds were held by a non-resident which justified the language used, that to permit a deduction of the tax from the interest would be giving effect to the laws of Pennsylvania upon property beyond her jurisdiction, and not the fact assigned by the learned justice. The decision is, neverthe- less, authority for the doctrine that property lying bej'ond the jurisdic- tion of the State is not a subject upon which her taxing power can be legitimately exercised. Indeed, it would seem that no adjudication should be necessary to establish so obvious a proposition. The power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the State. These subjects are persons, property, and business. Whatever form taxation may assume, whether as duties, imposts, excises, or li- censes, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured form, and in its va- rious transmutations. And the amount of the taxation may be deter- mined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the Federal Constitution, the power of the State as to the mode, form, and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction. Corporations may be taxed, like natural persons, upon their property and business. But debts owing by corporations, like debts owing by individuals, are not property of the debtors, in any sense ; they are obligations of the debtors, and only possess value in the hands of the creditors. With them they are propert}-, and in their hands they may be taxed. To call debts propertj- of the debtors is simply to misuse SECT. II.] STATE TAX ON FOREIGN-HELD BONDS. 231 terms. All the property there can be in the nature of things in debts of corporations, belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due. This principle might be stated in many different ways, and supported by citations from numerous adjudications, but no number of authorities, and no forms of expression could add anything to its obvious truth, which is recognized upon its simple statement. The bonds issued by the railroad company in this case are undoubt- edly property, but property in the hands of the holders, not property of the obligors. So far as they are held by non-residents of the State, thev are property beyond the jurisdiction of the State. The law which requires the treasurer of the company to retain five per cent of the inter- est due to the non-resident bondholder is not, therefore, a legitimate exercise of the taxing power. It is a law which interferes between the company and the bondholder, and under the pretence of levying a tux commands the company to withhold a portion of the stipulated interest and pay it over to the State. It is a law which thus impairs the obli- gation of the contract between the parties. The obligation of a contract depends upon its terms and the means which the law in existence at the time affords for its enforcement. A law which alters the terms of a con- tract by imposing new conditions, or dispensing with those expressed, is a law which impairs its obligation, for, as stated on another occasion, such a law relieves the parties from the moral duty of performing the original stipulations of the contract, and it prevents their legal enforce- ment. The Act of Pennsylvania of May 1, 1868, falls within this de- scription. It directs the treasurer of every incorporated company to retain from the interest stipulated to its bondholders five per cent upon every dollar, and pay it into the treasury of the Commonwealth. It thus sanctions and commands a disregard of the express provisions of the contracts between the company and its creditors. It is only one of many cases where, under the name of taxation, an oppressive exaction is made without constitutional warrant, amounting to little less than an arbitrary seizure of private property. It is, in fact, a forced contribution levied upon property held in other States, where it is subjected, or may be subjected, to taxation upon an estimate of its full value. The case of Maltby v. The Reading and Columbia Railroad Com- pany, decided by the Supreme Court of Pennsylvania in 18G6, was referred to by the Common Pleas in support of its ruling, and is relied upon by counsel in support of the tax in question. The decision in that case does go to the full extent claimed, and holds that bonds ot corporations held by non-resideiils are taxable in that State. But it is evident from a perusal of the opinion of the court that the decision proceeded upon the idea that the bond of the non-resident was itsell property in the State because secured by a mortgage on property there. '■ It is undoubtedly true." said the court, "that the Legislature of 232 STATE TAX ON FOREIGN-HELD BONDS. [OHAP. II. Pennsylvania cannot impose a personal tax upon the citizen of anothei State, but the constant practice is to tax property within our jurisdic- tion which belongs to non-residents." And again: "There must be jurisdiction over either the property or the person of the owner, else the power cannot be exercised ; but when the property is within our jurisdiction, and enjoys the protection of our State government, it is justly taxable, and it is of no moment that the owner, who is required to pay the tax, resides elsewhere." There is no doubt of the correct- ness of these views. But the court then proceeds to state that the principle of taxation as the correlative of protection is as applicable to a non-resident as to a resident ; that the loan to the non-resident is made valuable by the franchises which the company derived from the Commonwealth, and as an investment rests upon State authority, and, therefore, ought to contribute to the support of the State government. It also adds that, though the loan is for some purposes subject to the law of the domicile of the holder, " yet, in a very high sense," it is also property in Pennsylvania, observing, in support of this position, that the holder of a bond of the company could not enforce it except in that State, and that the mortgage given for its security was upon property and franchises within her jurisdiction. The amount of all which is this : that the State which creates and protects a corporation ought to have the right to tax the loans negotiated by it, though taken and held by non-residents, a proposition which it is unnecessary to con- trovert. The legality of a tax of that kind would not be questioned if in the charter of the company the imposition of the tax were author- ized, and in the bonds of the company, or its certificates of loan, the liability of the loan to taxation were stated. The tax in that case would be in the nature of a license tax for negotiating the loan, for in whatever manner made payable it would ultimately fall on the company as a condition of effecting the loan, and parties contracting with the company would provide for it by proper stipulations. But there is nothing in the observations of the court, nor is there anything in the opinion, which shows that the bond of the non-resident was property in the State, or that the non-resident had any property in the State which was subject to taxation within the principles laid down by the court itself, which we have cited. The property mortgaged belonged entirely to the company, and so far as it was situated in Pennsylvania was taxable there. If taxation is the correlative of protection, the taxes which it there paid were the correlative for the protection which it there received. And neither the taxation of the property, nor its protection, was augmented or dimin- ished by the fact that the corporation was in debt or free from debt, The property in no sense belonged to the non-resident bondholder 01 to the mortgagee of the company. The mortgage transferred no title ; it created only a lien upon the property. Though in form a convey- ance, it was both at law and in equity a mere security for the debt. That such is the nature of a mortgage in Pennsylvania has been fre- SECT. II.] MATE TAX OX FOKEIGX-IIELD BOXDS. 233 quently ruled by her highest court. In Witmer's Appeal, 45 Penn. S. 463, the court said : "The mortgagee has no estate in the land, any more than the judgment creditor. Both have liens upon it, and no more than liens.*' And in that State all possible interests in lands, whether vested or contingent, are subject to levy and sale on execution, yet it has been held, on the ground that a mortgagee has no estate in the lands, that the mortgaged premises cannot be taken in execution for his debt. In Rickert v. Madeira, 1 Rawle, 329, the court said: "A mortgage must be considered either as a chose in action or as giving title to the land and vesting a real interest in the mortgagee. In the latter case it would be liable to execution ; in the former it would not, as it would fall within the same reason as a judgment bond or simple contract. If we should consider the interest of the mortgagee as a real interest, we must carry the principle out and subject it to a dower and to the lien of a judgment ; and that it is but a chose in action, a mere evidence of debt, is apparent from the whole current of decisions." Wilson v. Shoenberger's Executors, 31 Penn. S. 295. Such being the character of a mortgage in Pennsylvania, it cannot be said, as was justly observed by counsel, that the non-resident holder and owner of a bond secured by a mortgage in that State owns any real estate there. A mortgage being there a mere chose in action, it only confers upon the holder, or the party for whose benefit the mort- gage is given, a right to proceed against the property mortgaged, upon a given contingency, to enforce, by its sale, the payment of his de- mand. This right has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the State when held by a resident therein, but when held by a non-resident it is as much beyond the jurisdiction of the State as the person of the owner. It is undoubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicile of its owner, will, in many cases, determine the State in which it may be taxed. The same thing is true of public securities consisting of State bonds and bonds of municipal bodies, and circulating notes of bank- ing institutions ; the former, by general usage, have acquired the char- acter of. and are treated as, property in the place where they are found, though removed from the domicile of the owner ; the latter are treated and pass as money wherever they are. But other personal property, consisting of bonds, mortgages, and debts generally, has no situs independent of the domicile of the owner, and certainly can have none where the instruments, as in the present case, constituting the evi dences of debt, are not separated from the possession of the owners. Cases wen' cited by counsel on the argument from the decisions of the highest courts of several States, which accord with the views we have expressed. In Davenport /'. The Mississippi and Missouri Rail- road Company, 12 Iowa. "):;'.), the question arose before (he Supreme Court of Iowa whether mortgages on property in that State held by non-residents could !>«■ taxed under a law which provided that all prop- 234 STATE TAX ON FOREIGN-HELD BONDS. [CHAP. II. erty, real and personal, within the State, with certain exceptions not material to the present case, should be subject to taxation, and the court said : — " Both in law and equity the mortgagee has only a chattel interest It is true that the situs of the property mortgaged is within the juris- diction of the State, but, the mortgage itself being personal property, a chose in action attaches to the person of the owner. It is agreed by the parties that the owners and holders of the mortgages are non- residents of the State. If so, and the property of the mortgage attaches to the person of the owner, it follows that these mortgages are not property within the State, and if not they are not the subject of taxation." In People v. Eastman, 25 Cal. 603, the question arose before the Su- preme Court of California whether a judgment of record in Mariposa County upon the foreclosure of a mortgage upon property situated in that county could be taxed there, the owner of the judgment being a resident of San Francisco, and the law of California requiring all prop- erty to be taxed in the county where situated ; and it was held that it was not taxable there. "The mortgage," said the court, "has no existence independent of the thing secured by it ; a payment of the debt discharges the mortgage. The thing secured is intangible, and has no situs distinct and apart from the residence of the holder. It pertains to and follows the person. The same debt may, at the same time, be secured by a mortgage upon land in every county in the State ; and if the mere fact that the mortgage exists in a particular county gives the property in the mortgage a situs subjecting it to taxation in that county, a party, without further legislation, might be called upon to pay the tax several times, for the lien for taxes attaches at the same time in every county in the State, and the mortgage in one county may be a different one from that in another although the debt secured is the same." Some adjudications in the Supreme Court of Pennsylvania were also cited on the argument, which appear to recognize doctrines inconsistent with that announced in Maltby v. Reading and Columbia Railroad Company, particularly the case of McKeen v. The County of North- ampton, 49 Penn. S. 519, and the case of Short's Estate, 16 Id. 63, but we do not deem it necessary to pursue the matter further. We are clear that the tax cannot be sustained ; that the bonds, being held by non-residents of the State, are only property in their hands, and that they are thus beyond the jurisdiction of the taxing power of the State. Even where the bonds are held by residents of the State, the retention by the company of a portion of the stipulated interest car only be sustained as a mode of collecting a tax upon that species oi property in the State. When the property is out of the State there can then be no tax upon it for which the interest can be retained. The tax laws of Pennsylvania can have no extraterritorial operation; aor can any law of that State, inconsistent with the terms of a con- SECT. II.] PULLMAN'S PALACE-CAK CO. V. PENNSYLVANIA. 235 tract, made with or payable to parties out of the State, have any effect upon the contract whilst it is in the hands of such parties or other non- residents. The extraterritorial invalidity of State laws discharging a debtor from his contracts with citizens of other States, even though made and payable in the State after the passage of such laws, has been judicially determined by this court. Ogden v. Saunders, 12 Wheaton, 214; Baldwin v. Hale, 1 Wallace, 223. A lilie invalidity must, on similar grounds, attend State legislation which seeks to change the obligation of such contracts in any particular, and on stronger grounds where the contracts are made and paj-able out of the State. Judgment reversed, and the cause remanded for further proceed* ings, in conformity with this opinion. 1 Davis, Clifford, Miller, and Hunt, JJ., dissenting. PULLMAN'S PALACE-CAR CO. v. PENNSYLVANIA. Supreme Court of the United States. 1891. [Reported 141 United States, 18.] Gray, J. 2 Upon this writ of error, whether this tax was in accord- ance with the law of Pennsylvania, is a question on which the decision of the highest court of the State is conclusive. The only question of which this court has jurisdiction is whether the tax was in violation of the clause of the Constitution of the United States granting to Congress the power to regulate commerce among the several States. The plain- tiff in error contends that its cars could be taxed only in the State of Illinois, in which it was incorporated and had its principal place of business. No general principles of law are better settled, or more fundamental, than that the legislative power of every State extends to all property within its borders, and that only so far as the comity of that State allows can such property be affected by the law of any other State. The old rule, expressed in the maxim mobilia sequuntur personam, by which personal property was regarded as subject to the law of the own- er's domicile, grew up in the Middle Ages, when movable property con- sisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of per- sonal property not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs, the law of the place where the property is kept and used. Green v. Van Buskirk, 5 1 See Tnppan v. Merchants' Nat. Bank, 19 Wall. 490 ; Detroit v. Board of Asses- sors, 91 Mich. 78. — Ed 2 Part of the opinion of the court and part of the dissenting opinion are omitted.— Ed. 2:"..; Pullman's palace-cak co. v. Pennsylvania, [chap. ii. Wall. 307. and 7 Wall. 139 ; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664 ; Uarkness v, Russell, 118 U. S. 663, 679; Walworth i\ Harris, 129 U. 8. 355 ; Story on Conflict of Laws, § 550 ; Wharton on Conflict of Laws, §§ 297-311. As observed by Mr. Justice Story, in hi* commentaries just cited, •" Although movables are for many purposes to be deemed to have no situs, except that of the domicile of the owner, yet this being but a legal fiction, it yields, whenever it is necessary for the purpose of justice that the actual situs of the thing should be ex- amined. A nation within whose territory any personal property is actually situate has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there." For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner ; and he may be taxed, on its account, at the place where it is, although not the place of his own domicile, and even if he is not a citizen or a resident of the State which imposes the tax. Lane County v. Oregon, 7 Wall. 71, 77; Railroad Co. v. Pennsylvania, 15 Wall. 300, 323, 324, 328; Railroad Co. v. Peniston, 18 Wall. 5, 29 ; Tappau v. Merchants' Bank, 19 Wall. 490, 499 ; State Railroad Tax Cases, 92 U. S. 575, 607, 608 ; Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517, 524; Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, 123. It is equally well settled that there is nothing in the Constitution or laws of the United States which prevents a State from taxing personal property, employed in interstate or foreign commerce, like other per- sonal property within its jurisdiction. . . . The cars of this company within the State of Pennsylvania are employed in interstate commerce ; but their being so employed does not exempt them from taxation by the State ; and the State has not taxed them because of their being so employed, but because of their being within its territory and jurisdiction. The cars were continuously and permanently employed in going to and fro upon certain routes of travel. If they had never passed beyond the limits of Pennsylvania, it could not be doubted that the State could tax them, like other property, within its borders, notwithstanding they were employed in interstate commerce. The fact that, instead of stopping at the State boundary, they cross that boundary in going out and coming back, cannot affect the power of the State to levy a tax upon them. The State, having the right, for the purposes of taxation, to tax any personal property found within its jurisdiction, without regard to the place of the owner's domicile, could tax the specific cars which at a given moment were within its borders. The route over which the cars travel extending beyond the limits of the State, particular cars may not remain within the State ; but the company has at all times substantially the same number of cars within the State, and continuously and constantly uses there a portion of its property ; and it is distinctly found, as matter of fact, that the company continuously, throughout the periods for which SECT.H.] PUIXMAN's PALACE-CAR CO. V. PENNSYLVANIA. 23' these taxes were levied, carried on business in Pennsylvania, and had about oue hundred cars within the State. The mode which the State of Pennsylvania adopted, to ascertain the proportion of the company's property upon which it should be taxed in that State, was by taking as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it ran cars within the State bore to the whole number of miles, in that and other States, over which its cars were run. This was a just and equitable method of assessment ; and, if it were adopted by all the States through which these cars ran, the company would be assessed upon the whole value of its capital stock, and no more. The validity of this mode of apportioning such a tax is sustained by several decisions of this court, in cases which came up from the Circuit Courts of the United States, and in which, therefore, the jurisdiction of this court extended to the determination of the whole case, and was not limited, as upon writs of error to the State courts, to questions under the Constitution and laws of the United States. In the State Railroad Tax Cases, 92 U. S. 575, it was adjudged that a statute of Illinois, by which a tax on the entire taxable property of a railroad corporation, including its rolling stock, capital, and franchise, was assessed by the State Board of Equalization, and was collected in each municipality in proportion to the length of the road within it, was lawful, and not in conflict with the Constitution of the State ; and Mr. Justice Miller, delivering judgment, said: — " Another objection to the system of taxation by the State is, that the rolling stock, capital stock, and franchise are personal property, and that this, with all other personal property, has a local situs at the principal place of business of the corporation, and can be taxed by no other county, city, or town, but the one where it is so situated. This objection is based upon the general rule of law that personal property, as to its situs, follows the domicile of its owner. It may be doubted very reasonably whether such a rule can be applied to a rail- road corporation as between the different localities embraced by its line of road. But, after all, the rule is merely the law of the State which recognizes it; and when it is called into operation as to prop- erty located in one State, and owned by a resident of another, it is a rule of comity in the former State rather than an absolute principle jn all cases. Green v. Van Buskirk, 5 Wall. 312. Like all other laws of a State, it is, therefore, subject to legislative repeal, modification, or limitation ; and when the legislature of Illinois declared that it should not prevail in assessing personal property of railroad companies for taxation, it simply exercised an ordinary function of legislation." 92 U. S. 607, 608. "It is further objected that the railroad track, capital stock, and franchise is not assessed in each county where it lies, according to ils value there, but according to an aggregate value of the whole, on which each county, city, and town collects taxes according to the length 238 Pullman's palace-car co. v. Pennsylvania. [ciiAr. ir. of the track within its limits." " It may well be doubted whether any better mode of determining the value of that portion of the track within an) - one county has been devised, than to ascertain the value of the whole road, and apportion the value within the county bv its relative length to the whole." " This court has expressly held in two cases, where the road of a corporation ran through different States, that a tax upon the income or franchise of the road was properly ap- portioned by taking the whole income or value of the franchise, and the length of the road within each State, as the basis of taxation. Delaware Railroad Tax, 18 Wall. 206; Erie Railroad v. Pennsyl- vania, 21 Wall. 492." 92 U. S. 608, 611. So in Western Union Telegraph Co. v. Attorney-General of Massa- chusetts, 125 U. S. 530, this court upheld the validity of a tax im- posed by the State of Massachusetts upon the capital stock of a telegraph company, on account of property owned and used by it within the State, taking as the basis of assessment such proportion of the value of its capital stock as the length of its lines within the State bore to their entire length throughout the country. Even more in point is the case of Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, in which the question was whether a rail- road company incorporated by the State of Maryland, and no part of whose own railroad was within the State of Virginia, was taxable under general laws of Virginia upon rolling stock owned by the company, and employed upon connecting railroads leased by it in that State, yet not assigned permanently to those roads, but used interchangeably upon them and upon roads in other States, as the company's necessities required. It was held not to be so taxable, solely because the tax laws of Virginia appeared upon their face to be limited to railroad corporations of that State; and Mr. Justice Matthews, delivering the unanimous judgment of the court, said: — " It is not denied, as it cannot be, that the State of Virginia has rightful power to levy and collect a tax upon such property used and found within its territorial limits, as this property was used and found, if and whenever it may choose, by apt legislation, to exert its authority over the subject. It is quite true, as the situs of the Balti- more and Ohio Railroad Company \n in the State of Maryland, that also, upon general principles, is the situs of all its personal property; but for purposes of taxation, as well as for other purposes, that situs may be fixed in whatever locality the property may be brought and used by its owner by the law of the place where it is found. If the Baltimore and Ohio Railroad Company is permitted by the State of Virginia to briug into its territory, and there habitually to use and employ a portion of its movable personal property, and the railroad company chooses so to do, it would certainly be competent and legiti- mate for the State to impose upon such properly, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in the like way by its own citizens. And such sect, ii.] Pullman's palace-car co. v. Pennsylvania. 2:30 ■q. tax might be properly assessed and collected in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, according" to the exigencies of the business. In such cases, the tax might be fixed by an appraisement and valuation of the average amount of the property thus habitually used, and col- lected by distraint upon any portion that might at any time be found. Of course, the lawlessness of a tax upon vehicles of trans- portation used by common carriers might have to be considered in particular instances with reference to its operation as a regulation of commerce among the States, but the mere fact that they were employed as vehicles of transportation in the interchange of inter- state commerce would not render their taxation invalid." 127 U. S. 123, 124. For these reasons, and upon these authorities, the court is of opim ion that the tax in question is constitutional and valid. The result of holding otherwise would be that, if all the States should concur in abandoning the legal fiction that personal property has its situs at the owner's domicile, and in adopting the system of taxing it at the place at which it is used and by whose laws it is protected, propert}' employed in any business requiring continuous and constant move- ment from one State to another would escape taxation altogether. Judgment affirmed, Mr. Justice Bradley, with whom concurred Mr. Justice Field and Mr. Justice Harlan, dissenting. I dissent from the judgment of the court in this case, and will state briefly my reasons. I concede that all property, personal as well as real, within a State, and belonging there, may l>e taxed by the State. Of that there can be no doubt. But where property does not belong in the State another question arises. It is the question of the jurisdiction of the State over the property. It is stated in the opinion of the court as a fundamental proposition on which the opinion really turns that all personal as well as real property within a State is subject to the laws thereof. I conceive that that proposition is not maintainable as a gen- eral and absolute proposition. Amongst independent nations, it is true, persons and property within the territory of a nation are subject to its laws, and it is responsible to other nations for any injustice it may do to the persons or property of such other nations. This is a rule of international law. But the States of this government are not independent nations. There is such a thing as a Constitution of the United States, and there is such a thing as a government of the United States, and there are many things, and many persons, and many articles of property that a State cannot lay the weight of its linger upon, because it would be contrary to the Constitution of the United states. Cer- tainly, property merely carried through a State cannot be taxed by the State. Such a tax would lie a fluty — which a State cannot impose. 240 pullman's palace-car co. v. Pennsylvania, [chap. tt. If a drove of cattle is driven through Pennsylvania from Illinois to New York, for the purpose of being sold in New York, whilst in Pennsylvania it may be subject to the police regulations of the State, but it is not subject to taxation there. It is not generally subject to the laws of the State as other property is. So if a train of cars starts at Cin- cinnati for New York and passes through Pennsylvania, it may be subject to the police regulations of that State whilst within it, but it would be repugnant to the Constitution of the United States to tax it. We have decided this very question in the case of State Freight Tax, 15 Wall. 232. The point was directly raised and decided that property on its passage through a State in the course of interstate commerce cannot be taxed by the State, because taxation is incidentally regulation, and a State cannot regulate interstate commerce. The same doctrine was recognized in Coe v. Errol, 116 U. S. 517. And surely a State cannot interfere with the officers of the United States, in the performance of their duties, whether acting under the Judicial, Military, Postal, or Revenue Departments. They are entirely free from State control. So a citizen of the United States, or any other person, in the performance of any duty, or in the exercise of any privi- lege, under the Constitution or laws of the United States, is absolutely free from State control in relation to such matters. So that the general proposition, that all persons and personal property within a State is subject to the laws of the State, unless materially modified, cannot be true. But. when personal property is permanently located within a State for the purpose of ordinary use or sale, then, indeed, it is subject to the laws of the State and to the burdens of taxation ; as well when owned by persons residing out of the State, as when owned by persons resid- ing in the State. It has then acquired a situs in the State where it is found. A man residing in New York may own a store, a factory, or a mine in Alabama, stocked with goods, utensils, or materials for sale or use in that State. There is no question that the situs of personal property so situated is in the State where it is found, and that it may bo sub- jected to double taxation, — in the State of the owner's residence, as a part of the general mass of his estate ; and in the State of its situs. Although this is a consequence which often bears hardly on the owner, yet it is too firmly sanctioned by the law to be disturbed, and no remedy seems to exist but a sense of equity and justice in the legislatures of the several States. The rule would undoubtedly be more just if it made the property taxable, like lands and real estate, only in the place where it is permanently. situated. Personal as well as real property may have a situs of its own, inde- pendent of the owner's residence, even when employed in interstate or foreign commerce. An office or warehouse, connected with a steamship line, or with a continental railway, may be provided with furniture and all the apparatus and appliances usual in such establishments. Such SECT. II.] PULLMAN'S PALACE-CAB CO. V. PENNSYLVANIA. 241 property would be subject to the lex n I sita and to local taxation, though solely devoted to the purposes of the business of those lines. But the ships that traverse the sea, and the cars that traverse the land, in those lines, being the vehicles of commerce, interstate or foreign, and intended for its movement from one State or country to another, and having no fixed or permanent situs or home, except at the residence of the ovvner, cannot, without an invasion of the powers and duties of the federal government, be subjected to the burdens of taxation in the places where they only go or come in the transaction of their business, except where they belong. Hays v. Pacific Mail Steamship Co., 17 How. 596; Morgan r. Parham. 16 Wall. 471; Transportation Co. v. Wheeling, 99 U. S. 273. To contend that there is any difference be- tween cars or trains of cars and ocean steamships in this regard, is to lose sight of the essential qualities of things. This is a matter that does not depend upon the affirmative action of Congress. The regula- tion of ships and vessels, by act of Congress, does not make them the instruments of commerce, they would be equally so if no such affirma- tive regulations existed. For the States to interfere with them in either case would be to interfere with, and to assume the exercise of, that oower which, by the Constitution, has been surrendered by the States to the government of the United States, namely, the power to regulate commerce. Reference is made in the opinion of the court to the case of Railroad Company v. Maryland, 21 Wall. 456, in which it was said that commerce on land between the different States is strikingly dissimilar in many re- spects from commerce on water ; but that was said in reference to the highways of transportation in the two cases, and the difference of control which the State has in one case from that which it can possibly have in the other. A railroad is laid on the soil of the State, by virtue of au- thority granted by the State, and is constantly subject to the police juris- diction of the State ; whilst the sea and navigable rivers are high- ways created by nature, and are not subject to State control. The question in that case related to the power of the State over its own corporation, in reference to its rate of fares and the remuneration it was required to pay to the State for its franchises, — an entirely differ- ent question from that which arises in the present case. Reference is also made to expressions used in the opinion in Glouces- ter Ferry Co. v. Pennsylvania. Ill U. S. 196, which, standing alone, would seem to concede the right of a State to tax foreign corporations engaged in foreign or interstate commerce, if such property is within the jurisdiction of the State. But the whole scope of thai opinion is to show that neither the vehicles of commerce coming within the State, nor the capital of such corporations, is taxable there; but only the property having a 8ltU8 there. :is the wharf used lor landing passengers and freight. The entire series of decisions to that effect are cited and relied on. Of course I do not mean to say that either railroad cars or ships are 242 Pullman's palace-car co. v. Pennsylvania, [chap. ii. to be free from taxation, but I do say that they are not taxable by those States in which they are only transiently present in the transaction of their commercial operations. A British ship coming to the harbor of New York from Liverpool ever so regularly and spending half its time (when not on the ocean) in that harbor, cannot be taxed by the State of New York (harbor, pilotage, and quarantine dues not being taxes). So New York ships plying regularly to the port of New Orleans, so that one of the line may be always lying at the latter port, cannot be taxed by the State of Louisiana. (See cases above cited). No more can a train of cars belonging in Pennsylvania, and running regularly from Philadelphia to New York, or to Chicago, be taxed by the State of New York, in the one case, or by Illinois, in the other. If it may lawfully be taxed b} - these States, it may lawfully be taxed by all the intermediate States, New Jersey, Ohio, and Indiana. And then we should have back again all the confusion and competition and State jealousies which existed before the adoption of the Constitution, and for putting an end to which the Constitution was adopted. In the opinion of the court it is suggested that if all the States should adopt as equitable a rule of proportioning the taxes on the Pullman Company as that adopted b}- Pennsylvania, a just system of taxation of the whole capital stock of the company would be the result. Yes, if — ! But Illinois may tax the company on its whole capital stock. Where would be the equity then? This, however, is a consideration that cannot be compared with the question as to the power to tax at all, — as to the relative power of the State and general governments over the regulation of internal commerce, — as to the right of the States to resume those powers which have been vested in the government of the United States. It seems to me that the real question in the present case is as to the situs of the cars in question. They are used in interstate commerce, between Pennsylvania, New York, and the Western States. Their legal situs no more depends on the States or places where the}* are carried in the course of their operations than would that of any steamboats em- ployed by the Pennsylvania Railroad Company to carry passengers on the Ohio or Mississippi. If such steamboats belonged to a company located at Chicago, and were changed from time to time as their condi- tion as to repairs and the convenience of the owners might render necessary, is it possible that the States in which they were running and landing in the exercise of interstate commerce could subject them to taxation? No one, I think, would contend this. It seems to me that the cars in question belonging to the Pullman Car Company are in pre- cisely the same category. SECT. II.] ADAMS EXPRESS CO. V. OHIO. 24:) ADAMS EXPRESS COMPANY v. OHIO. Supreme Court of the United States. 1807. [Reported 166 U. S 194 ; 166 U. S. 185.] These are oases involving the constitutionality of certain laws of the State of Ohio providing for the taxation of telegraph, telephone, and express companies, and the validity of assessments of express com- panies thereunder. The general assembly of Ohio passed, April 27, 1893,90 Ohio Laws, 330, an act to amend and supplement §§ 2777, 2778, 2779, and 2780 of the Revised Statutes of that State (commonly styled "The Nichols Law "), which was amended May 10, 181)4. The law created a state board of appraisers and assessors, consisting of the auditor of State, treasurer of State, and attorney general, which was charged with the duty of assessing the property in Ohio of telegraph, telephone, and express companies. By the act as amended, between the first and thirty- first days of May annually each telegraph, telephone, and express com- pany doing business in Ohio, was required to file a return with tlie auditor of State, setting forth among other things the number of shares of its capital stock ; the par value and market value (or, if there be no market value, then the actual value) of its shares at the date of the return; a statement in detail of the entire real and personal property of said companies and where located, and the value thereof as assessed for taxation. Telegraph and telephone companies were required to return, also, the whole length of their lines, and the length of so much of their lines as is without and is within the State of Ohio, including the lines controlled and used, under lease or otherwise. Express com- panies were required to include in the return a statement of their entire gross receipts, from whatever source derived, for the year ending the first day of May, of business wherever done ; and of the business done in the State of Ohio, giving the receipts of each office in the State ; also the whole length of the lines of rail and water routes over which the companies did business, within and without the State. Provision was made in the law for the organization of the board, for the appoint- ing of one of its members as secretary and the keeping of full minutes of its proceedings. The board was required to meet in the month of dune and assess the value of the property of these companies in Ohio. The rule to be followed by the board in making the assessment was that '-in determining the value of the property of said companies in this State, to lie taxed within the State and assessed as herein pro- vided, said board shall be guided by the value of said property as de- termined by the value of the entire capital stock of said companies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said companies within the State of Ohio, in t l .:■ proportion which the same bears to the entire 244: ADAMS EXPRESS CO. V. OHIO. [CHAP. II. property of said companies, as determined by the value of the capital stock thereof, and the other evidence and rules as aforesaid." As to telegraph and telephone companies, the hoard was required to apportion the valuation among the several counties through which the lines run. in the proportion that the length of the lines in the respective counties bore to the entire Length in the State; in the case of express companies, the apportionment was to be made among the several coun- ties in which they did business, in the proportion that the gross receipts in each county bore to the gross receipts in the State. The amount thus apportioned was to lie certified to the county audi- tor, and placed by him on the duplicate " to be assessed, and the taxes thereon collected the same as taxes assessed and collected on other personal property," the rate of taxation to be the same as that on other property in the local taxing district. The Valuation of all the real estate of the companies, situated in Ohio, was required to be deducted from the total valuation, as fixed by the board. The original suits were brought in the Circuit Court to enjoin the certification of the apportioned valuations to the county auditors, as to 1893, against the state board ; as to 1894 and 1895, against the auditor of State. 1 The appellants filed a petition for a rehearing. Brewer, J. We have had before us at the present term several cases involving the taxation of the property of express companies, some coming from Ohio, some from Indiana, and one from Kentucky : also a case from the latter State involving the taxation of the property of the Henderson Bridge Company. The Ohio and Indiana cases were decided on the 1st of February. (165 U. S. 194.) Petitions for re- hearing of those cases have been presented and are now before us for consideration. The importance of the questions involved, the close division in this court upon them, and the earnestness of counsel for the express com- panies in their original arguments, as well as in their briefs on this application, lead those of us who concurred in the judgments to add a few observations to what has hitherto been said. Ao-ain and asain has this court affirmed the proposition that no State can interfere with interstate commerce through the imposition of a tax. by whatever name called, which is in effect a tax for the privilege of transacting such commerce. And it has as often affirmed that such restriction upon the power of a State to interfere with interstate com- merce does not in the least degree abridge the right of a State *o tax at their full value all the instrumentalities used for such commerce. Now the taxes imposed upon express companies by the statutes of the three States of Ohio, Indiana, and Kentucky are certainly not in terms '-privilege taxes." They purport to be upon the property of the 1 Fart of the statement of facts, arguments of counsel, and the opinion of the Court upon the first argument, are omitted. — Ed SECT. II.] ADAMS EXPRESS CO. V. OHIO. 24."> companies. The}' are. therefore, not, in form at least, subject to any of the denunciations against privilege taxes which have so often come from this court. The statutes grant no privilege of doing an express business, charge nothing for doing such a business, and contemplate only the assessment and levy of taxes upon the property of the express com- panies situated within the respective States. And the only really sub- stantial question is whether, properly understood and administered, they subject to the taxing power of the State property not within its territorial limits. The burden of the contention of the express companies is that they have within the limits of the State certain tangible property, such as horses, wagons, etc. ; that that tangible property is their only prop- erty within the State ; that it must be valued as other like property, and upon such valuation alone can taxes be assessed and levied against them. But this contention practically ignores the existence of intangible property, or at least denies its liability for taxation. In the complex civilization of to-day a large portion of the wealth of a community con- sists in intangible property, and there is nothing in the nature of things or in the limitations of the Federal Constitution which restrains a State from taxing at its real value such intangible property. Take the sim- plest illustration : B, a solvent man, purchases from A certain prop- erty, and gives to A his promise to pay, say, $100,000 therefor. Such promise may or may not be evidenced by a note or other written instru- ment. The property conveyed to B may or may not be of the value of $100,000. If there be nothing in the way of fraud or misrepresenta- tion to invalidate that transaction, there exists a legal promise on the part of B to pay to A $100,000. That promise is a part of A's prop- erty. It is something of value, something on which he will receive cash, and which he can sell in the markets of the community for cash. It is as certainly property, and property of value, as if it were a build- ing or a steamboat, and is as justly subject to taxation. It matters not in what this intangible property consists — whether privileges, cor- porate franchises, contracts, or obligations. It is enough that it is property which though intangible exists, which has value, produces income, and passes current in the markets of the world. To ignore this intangible property, or to hold that it is not subject to taxation at its accepted value, is to eliminate from the reach of the taxing power a large portion of the wealth of the country. Now, whenever separate articles of tangible property are joined together, not simply by a unity of ownership, but in a unity of use, there is not infrequently developed a property, intangible though it may be, which in value exceeds the aggregate of the value of the separate pieces of tangible property. Upon what theory of substantial right can it be adjudged that the value of this intangible property musl be excluded from the tax lists, and the only property placed thereon be the separate pieces of tangible property? The first question t<> be considered therefore is whether there is 246 ADAMS EXPEESS CO. V. OHIO. [ciIAP. II. belonging to these express companies intangible property — property differing from the tangible property — a property created by either the combined use or the manner of use of the separate articles of tangible property, or the grant or acquisition of franchises or privileges, or all together. To say that there can be no such intangible property, that it is something of no value, is to insult the common intelligence of every man. Take the Henderson Bridge Company's property, the validity of the taxation of which is before us in another case. The facts disclosed in that record show that the bridge company owns a bridge over the Ohio, between the city of Henderson in Kentucky and the Indiana shore, and also ten miles of railroad in Indiana; that that tangible property — that is, the bridge and railroad track — was assessed in the States of Indiana and Kentucky at $1,277,61)5.54, such, therefore, being the adjudged value of the tangible property. Thus the physical property could presumably be reproduced by an expenditure of that sum, and if placed elsewhere on the Ohio River, and without its connections or the business passing over it or the franchises con- nected with it, might not of itself be worth any more. As mere bridge and tracks, that was its value. If the State's power of taxation is lim- ited to the tangible property, the company should only be taxed in the two States for that sum, but it also appears that it, as a corporation, had issued bonds to the amount of $2,000,000, upon which it was paying interest; that it had a capital stock of $1,000,000, and that the shares of that stock were worth not less than $90 per share in the market. The owners, therefore, of that stock had property which for purposes of income and purposes of sale was worth $2,900,000. 'What o-ives this excess of value? Obviously the franchises, the privi- lec;es the company possesses — its intangible property. Now, it is a cardinal rule which should never be forgotten that what- ever property is worth for the purposes of income and sale it is also worth for purposes of taxation. Suppose such a bridge were entirely within the territorial limits of a State, and it appeared that the bridge itself cost only $1,277,000, could be reproduced for that sum, and yet it was so situated with reference to railroad or other connections, so used by the travelling public, that it was worth to the holders of it in die matter of income $2,900,000, could be sold in the markets for that sum, was therefore in the eyes of practical business men of the value of $2,900,000, can there be any doubt of the State's power to assess it at that sum, and to collect taxes from it upon that basis of value? Substance of right demands that whatever be the real value of any propert}', that value may be accepted by the State for purpose of taxa- tion, and this ought not to be evaded by any mere confusion of words. Suppose an express company is incorporated to transact business within the limits of a State, and does business only within such limits, and for the purpose of transacting that business purchases and holds a few thousands of dollars' worth of horses and wagons, and yet it so meet* the wants of the people dwelling in that State, so uses the tangible SECT.n.l ADAMS EXPRESS CO. V. OHIO. 247 property which it possesses, so transacts business therein that its stock becomes in the markets of the State of the actual cash value of hun- dreds of thousands of dollars. To the owners thereof, for the purposes of income and sale, the corporate property is worth hundreds of thou- sands of dollars. Does substance of right require that it shall pay taxes only upon the thousands of dollars of tangible property which it possesses? Accumulated wealth will laugh at the crudity of taxing laws which reach only the one and ignore the other, while they who own tangible property, not organized into a single producing plant, will feel the injustice of a system which so misplaces the burden of taxation. A distinction must be noticed between the construction of a State law and the power of a State. If a statute, properly construed, con- templates only the taxation of horses and wagons, then those belonging to an express company can be taxed at no higher value than those belonging to a farmer. But if the State comprehends all property in its seheme of taxation, then the good will of an organized and estab- lished industry must be recognized as a thing of value. The capital stock of a corporation and the shares in a joint stock company repre- sent not only the tangible property, but also the intangible, including therein all corporate franchises and all contracts, privileges, and good will of the concern. Now, the same reality of the value of its intangible property exists when a company does not confine its work to the limits of a single State. Take, for instance, the Adams Express Company. According to the return filed by it with the auditor of the State of Ohio, as shown in the records of these cases, its number of shares was 120,000, the market value of each &140 to $150. Taking the smaller sum, gives the value of the company's property taken as an entirety as $16,800,000. In other words, it is worth that for the purposes of income to the holders of the stock and for purposes of sale in the markets of the land. But in the same return it shows that the value of its real estate iu Ohio was only 825.170; of real estate owned outside of Ohio, $3,005,157.52 ; or a total of 8:5.030,327.52 ; the value of its personal property in Ohio, 842. tie,."); of personal property outside of Ohio, $1,117,426.05; or a total of $1,159,491.05, making a total valuation of its tangible property $4,189,818.57, and upon that basis it insists that taxes shall be levied. But what a mockery of substantial justice it would be for a corporation, whose property is worth to its stock- holders for the purposes of income and sale $16,800,000, to be ad- judged liable lor taxation only upon one fourth of that amount, The value which property bears in the market, the amount for which it? stock can be bought and sold, is the real value. Business men do no". pay cash for property in moonshine or dreamland. They buy and pay for that which is of value in its power to produce income, or for pur poses of sale. It is suggested that the company may have bonds, stocks, or other 248 ADAMS EXPRESS CO. V. OHIO. [CHAP. II. investments which produce a part of the value of its capital stock, and which have a special situs in other States or are exempt from taxation. If it has, let it show the fact. Courts deal with things as they are, and do not determine rights upon mere possibilities. If half of the property of the Adams Express Company, which by its own showing is worth $16,000,000 and over, is invested in United States bonds, and there- fore exempt from taxation, or invested in any way outside the business of the company and so as to be subject to purely local taxation, h t that fact be disclosed, and then if the State of Ohio attempts to include within its taxing power such exempted property, or property of a dif- ferent situs, it will be time enough to consider and determine the rights of the company. That if such facts exist they must be taken into con- sideration by a State in its proceedings under such tax laws as are here presented has been heretofore recognized and distinctly affirmed by this court. Pittsburgh, Cincinnati, etc. Railway Co. v. Backus, 154 U. S. 421, 443; Western Union Telegraph Co. v. Taggart, 163 U. S. 1, 23 ; Adams Express Co. v. Ohio, 165 U. S. 194, 227. Presumably all that a corporation has is used in the transaction of its business, and if it has accumulated assets which for any reason affect the question of taxation, it should disclose them. It is called upon to make return of its property, and if its return admits that it is possessed of property of a certain value, and does not disclose anything to show that any portion thereof is not subject to taxation, it cannot complain if the State treats its property as all taxable. But where is the situs of this intangible property? The Adams Express Company has, according to its showing, in round numbers $4,000,000 of tangible property scattered through different States, and with that tangible property thus scattered transacts its business. By the business which it transacts, by combining into a single use all these separate pieces and articles of tangible property, by the contracts, franchises, and privileges which it has acquired and possesses, it has created a corporate property of the actual value of $16,000,000. Thus, according to its figures, this intangible property, its franchises, privi- leges, etc., is of the value of $12,000,000, and its tangible property of only $4,000,000. Where is the situs of this intangible property? Is it simply where its home office is, where is found the central directing thought which controls the workings of the great machine, or in the State which gave it its corporate franchise; or is that intangible prop- erty distributed wherever its tangible property is located and its work is done? Clearly, as we think, the latter. Every State within which it is transacting business and where it has its property, more or less, may rightfully say that the $16,000,000 of value which it possesses springs not merely from the original grant of corporate power by the State°which incorporated it, or from the mere ownership of the tangible property, but it springs from the fact that that tangible property it has combined with contracts, franchises, and privileges into a single unit of property, and this State contributes to that aggregate value not merely SECT.II.] ADAMS EXPRESS CO. V. OHIO. 249 the separate value of such tangible property as is within its limits, bui its proportionate share of the value of the entire property. That this is true is obvious from the result that would follow if all the States other than the one which created the corporation could and should withhold from it the right to transact express business within their limits. It might continue to own all its tangible property within each of those States, but unable to transact the express business within cheii limits, that $12,000,000 of value attributable to its intangible property would shrivel to a mere trifle. It may be true that the principal office of the corporation is in New York, and that for certain purposes the maxim of the common law was " mobilia personam sequuntur," but that maxim was never of universal application, and seldom interfered with the right of taxation. Pull- man's Palace Car Co. v. Pennsylvania, 141 U. S 18, 22. It would certainly seem a misapplication of the doctrine expressed in that maxim to hold that by merely transferring its principal office across the river to Jersey City the situs of $12,000,000 of intangible property for pur- poses of taxation was changed from the State of New York to that of New Jersey. It is also true that a corporation is, for purposes of jurisdiction in the Federal courts, conclusively presumed to lie a citizen of the State which created it, but it does not follow therefrom that its franchise to be is for all purposes to be regarded as confined to that State. For the transaction of its business it goes into various States, and wherever it goes as a corporation it carries with it that franchise to be. Put the franchise to be is only one of the franchises of a corporation. The franchise to do is an independent franchise, or rather a combina- tion of franchises, embracing ail things which the corporation is given power to do, and this power to do is as much a thing of value and a part of the intangible property of the corporation as the franchise to be. Franchises to do go wherever the work is done. The Southern Pacific Railway Company is a corporation chartered by the State of Kentucky, yet within the limits of that State it is said to have no tan- gible property and no office for the transaction of business. The vast amount of tangible property which by lease or otherwise it holds and operates, and all the franchises to do which it exercises, exist and are exercised in the States and Territories on the Pacific Slope. Do not these intangible properties — these franchises to do — exercised in con- nection with the tangible property which it holds, create a substantive matter of taxation to be asserted l>\ every State in which thai tangible property i.i found ? It is said that the views thus expressed open the door to possibilities of gross injustice to these corporations, through the conflicting action of the different Slates in matters of taxation. That may be so, and the courts may be called upon to relieve against Mich abuses. But such possibilities do nol equal the wrong which sustaining the con ten tioi; of the appellant would at once do. In the city of New York are 250 ADAMS EXPRESS CO. V. OHIO. [CHAP. II. located the Headquarters of a corporation, whose corporate property is fessedly of the value of $16,000, 000 — a value which can be realized by its stockholders at any moment they see fit. Its tangible property an 1 its business is scattered through many States, all whose powers are invoked to protect its property from trespass and secure it in the peaceful transaction of its widely dispersed business. Yet because that tangible property is only $4.0 10 we are told that that is the limit of the taxing power of thes< States. In other words, it asks these Sta 3 to rotect property which to it is of the value of 81 6.000.000, but is willing to pay taxes only on the basis of a valuation of $4,000,000. The injustice of this speaks for itself. In conclusion, let us say that this is eminently a practical age : that courts must reco^n'ze things as they arc and as possessing a value a is accorded to them in the markets of the world, and that no finespun theories about situs should interfere to enable these large cor- porations, whose business i- carried on through many States, to escape from bearing in each State such burden of taxation as a fair distribu- tion of the actual value of their property among those States requires. The petition for a rehearing is Den led. White. -T. with whom were Field. Harlan, and Brown. JJ.), dissenting. 1 It is elementary that the taxing power of one government cannot be lawfully exerted over property not within its jurisdiction or territory and within the territory and jurisdiction of another. The attempted exercise of such power would be a clear usurpation of authority, and involve a denial of the most obvious conceptions of government. This rule, common to all jurisdictions, is peculiarly applicable to the several - L tea of the Union, as they are by the Constitution confined within the orbit of their lawful authority, which they cannot transcend with- out destroying th eg nate powers of each other, and. therefore, with- out violating the Constitution of the United States. In assessing the actual intrinsic value of tangible property of ex- — companies in the State of Ohio it was the duty of the assessing board to add to such value a proportionate estimate of the capital stock, so as thereby to assess not only the tangible property within the State, but also along with such property a part of the entire capital 31 iek of the corporation, without reference to its domicil, and equally without reference to the situation of the property and assets owned by the companv from which alone its capital stock derives value. In other words, although actual property situated in States other than Ohio may not be assessed in that State, yet that it may take all the value of the propertv in other States and add such portion thereof, as it sees fit. to the assessment in Ohio, and that this process of taxation of property 1 Thi- opinion was delivered npon the first argument. Part of it only is given. SECT. II.] ADAMS EXPIiESS CO. V. OHIO. 251 in other States, in violation of the Constitution, becomes legal provided only it is called taxation of property within the State. If the rule contended for by the State of Ohio be true, why would it not apply to a corporation, partnership, or individual engaged in the dry goods business or any other business having branches in various States? Would it not be as proper to say of such agencies, as it is of the agencies of express companies, that there is an intellectual unity of earnings between the main establishment and all such agencies, and therefore a right to assess goods found in an agency with relation to the capital and wealth of the original house and all the other branches situated in other States? Take the case of a merchant carrying on a general commercial business in one State and having connections of confidence and credit with another merchant of great capital in anotli State. If this rule be true, can it not also be said that such merchant derives advantages in his business from the sum of the capital in other States which may be availed of to extend his credit and his capacity to do business, and that therefore his tangible propertv must be vale accordingly? Suppose bankers in Boston. Philadelphia, and New York of great wealth, owning stocks and bonds of various kinds, send representatives to New Orleans with a limited sum of monev there to commence business. These representatives rent offices and buj office furniture. Is it not absolutely certain that the business of those indi- viduals would be largely out of proportion to the actual capital pos- sessed by them, because of the tact that reflexly and indirectlv their business and credit is supported by the home offices? In this situation, the assessor comes for their tax return. He finds noted thereon onlj a limited sum of money and the value of the office furniture. What is to prevent that official under the rule of supposed metaphysical or intel- lectual unity between property from saying: "It is true vou have but a small tangible capital, and your office furniture is only worth $250. but the value of property is in its use. and as you have various elements of wealth situated in the cities named. I will assess your propertv be- cause of its use at a million dollars"'? Such conduct would be ex- actly in accord with the power of taxation which it is here claimed the State of Ohio possesses, and which, as I understand it. the court now uphol Is. To give the illustrations, I submit, is to point to the con- fusion, injustice, and impossibility of such a rule. 252 NEW OKLEAA T S V. STEJU'EL. [ CHAP. II. NEW ORLEANS v. STEMPEL. Supreme Court of the United States. 1899. [Reported 175 United States, 309.] Brewer, J. 1 This case came on appeal from the Circuit Court of tlie United States for the Eastern District of Louisiana. It is a suit brought by the appellee to restrain the collection of taxes levied upon certain personal property which she claims was exempt from taxation. . . . The assessment . . . was of $15,000 " money in possession, on deposit, or in hand," and of 1800,000 " money loaned on interest, all credits and all bills receivable, for money loaned or advanced, or for goods sold ; and all credits of any and every description." . . . Under the circumstances disclosed by the testimony, were the money and credits subject to taxation ? It appears that these credits were evidenced by notes largely secured by mortgages on real estate in New Orleans ; that these notes and mortgages were in the city of New Orleans, in possession of an agent of the plaintiff, who collected the interest and principal as it became due, and deposited the same in a bank in New Orleans to the credit of the plaintiff. The question, there- fore, is distinctly presented whether, because the owners were domi- ciled in the State of New York, the moneys so deposited in a bank within the limits of the State of Louisiana, and the notes secured by mortgages situated and held as above described, were free from taxa- tion in the latter State. Of course there must be statutory warrant for such taxation ; for if the legislature omits any property from the list of taxables, the courts are not authorized to correct the omission and adjudge the omitted property to be subject to taxation. 2 From this review of the decisions of the Supreme Court of the State, it is obvious that moneys, such as those referred to, collected as in- terest and principal of notes, mortgages, and other securities kept within the State, and deposited in one of the banks of the State for use or reinvestment, are taxable under the act of 1890. They are property arising from business done in tbe State ; they were tangible property when received by the agent of the plaintiffs, and as such sub- ject to taxation, and their taxability was not, as the court holds, lost by their mere deposit in a bank. It is true that when deposited the moneys became the property of the bank, and for most purposes the relation of debtor and creditor arose between the bank and the de- positor ; yet, as evidently the moneys were to be kept in the State for 1 Part of the opinion is omitted. — Ed. 2 The court here cited Acts La. 1890, c. 121 ; Liverpool, etc. Ins. Co. v. Board of Assessors, 44 La. Ann. 760 ; Railey v. Board of Assessors, 44 La. Ann. 765; Clason v. X,, w Orleans, 46 La. Ann. 1 ; Bluefield Banana Co. v. Board of Assessors, 49 La. Ann. 43 ; Parker v. Strauss, 49 La. Ann. 1173 ; London & Liverpool Ius. Co. v. Board of Assessors, 51 La. Ann. 1028. — Ed SECT. II.] NEW ORLEANS V. STEMBEE. 253 reinvestment or other use, ihej remained still subject to taxation, ac- cording to Uie decision in 49 La Ann. 43. With regard to the notes and mortgages, it m.-n be conceded that there is no express decision of the Supreme Court lo the effect that they were taxable under the law of 1890; yet the reasoning of that court in several cases and its decla- rations, although perhaps only dicta, show that clearly in its judgment they had a local situs within the State, and were by the statute of 1890 subject to taxation. When the question is whether property is exempt from taxation, and that exemption depends alone on a true construction of a statute of the State, the Federal courts should be slow to declare an exemption in advance of any decision by the courts of the State. The rule in such a case is that the Federal courts follow the construction placed upon the statute by the State courts, and in advance of such construction they should not declare property beyond the scope of the statute and exempt from taxation unless it is clear that such is the fact. In other words, they should not release any property within the State from its liability to State taxation unless it is obvious that the statutes of the Mate warrant such exemption, or unless the mandates of the Federal Constitution compel it. If we look to the decisions of other States, we find the frequent ruling that when an indebtedness has taken a concrete form and become evi- denced by note, bill, mortgage, or other written instrument, and that written instrument evidencing the indebtedness is left within the State m the hands of an agent of the non-resident owner, to be bv him used for the purposes of collection and deposit or reinvestment 'within the State, its taxable situs is in the State. See Catlin r. Hull, 21 Vt. 152. m which the rule was thus announced (pages 159, 161) : — "It is undoubtedly true that, by the generally acknowledged prin- ciples of public law. personal chattels follow the person of the owner and that upon his death they are to be distributed according to the law of Ins domicile ; and, in general, any conveyance of chattels good by the law of his own domicile will be good elsewhere. But this rule is merely a legal fiction, adopted from considerations of general con- venience and policy for the benefit of commerce, and to enable persons to dispose of their property at their decease agreeably to their wishes without being embarrassed by their want of knowledge in relation to the laws of the country where the same is situated/ But even this doctrine is to be received and understood with this limitation, that there is no positive law of the country where the property is in fact which contravenes the law of his domicile ; for if there is, the law of the owner's domicile must yield to the law of the State where the property is in fact situate." * J "We are not only satisfied that this method of taxation is well founded in principle and upon authority, but we think it entirely just and equitable that, if persons residing abroad bring their property and 254 NEW ORLEANS V. STEMPEL. [ CHAP. II. invest it in this State, for the purpose of deriving profit from its use and empk>3'ment here, and thus avail themselves of the benefits and advantages of our laws for the protection of their property, their prop- erty should yield its due proportion towards the support of the govern- ment which thus protects it." In Goldgart v. People, 106 111. 25, 28, the court said: — " If the owner is absent, but the credits are in fact here, in the hands of an agent, for renewal or collection, with the view of reloaning the money by the agent as a permanent business, they have a situs here for the purpose of taxation, and there is jurisdiction over the thing." In Wilcox v. Ellis, 14 Kan. 588, the power of the State to tax a citizen and resident of Kansas, on mone}* due him in Illinois, evidenced by a note which was left in Illinois for collection, was denied, the court saying (p. 603), after referring to the maxim, mob'dia sequuntur personam .- — " This maxim is at most only a legal fiction ; and Blackstone, speak- ing of legal fictions, says : ' This maxim is invariably observed, that no fiction shall extend to work an injury, its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law.' 3 Blackstone Com. 43. Now, as the State of Illinois, and not Kansas, must furnish the plaintiff with all the remedies that he may have for the enforcement of all his rights connected with said notes, debts, etc., it would seem more just, if said debt is to be taxed at all, that the State of Illinois, and not Kansas, should tax it, and that we should not resort to legal fictions to give the State of Kansas the right to tax it." The same doctrine was affirmed in Fisher v. Commissioners of Rush County, 19 Kan. 414, and again in Blain v. Irby, 25 Kan. 499, 501, in which the court said, referring to promissory notes : " They have such an independent situs that they may be taxed where they are situated." The decisions of the highest courts of New York, in which State these plaintiffs reside, are to the same effect. In People v. Trustees, 48 N. Y. 390, 397, the court said : — " That the furniture in the mansion and the mone} 7 in the bank were, under these provisions, properly assessable to the relators is not seri- ously disputed. And I am unable to see why the money due upon the land contracts must not be assessed in the same wa}\ The debts due upon these contracts are personal estate, the same as if they were due upon notes or bonds ; and such personal estate may be said to exist where the obligations for payment are held. Notes, bonds, and other contracts for the payment of money have always been regarded and treated in the law as personal propert}'. They represent the debts secured by them. They are the subject of larceny, and a transfer of them transfers the debt. If this kind of property does not exist where the obligation is held, where does k exist ? It certainly does not exist where the debtor may be and follow his person. And while, for some purposes in the law, by legal fiction, it follows the person of the cred- SECT. II.] NEW ORLEANS V. STEMPEL. 25E itor and exists where he may be, yet it has been settled that, for the purpose of taxation, this legal fiction docs nut, to the full extent, apply, and that such property belonging to a non-resident creditor may be taxed in the place where the obligations are held by his agent. Hoyt v. Commissioners of Taxes, 23 N. Y. 238 ; The People v. Gardner, 51 Barb. 352; Catlin v. Hull, 21 Vt. 152." This proposition was reaffirmed in People ex rel. v. Smith, 88 N. Y. 576. in which the Court of Appeals of that State held that a resident of New York was not liable to taxation on moneys loaned in the States of Wisconsin and Minnesota on notes and mortgages, which notes and mortgages were held in tiiose States for collection of principal and in- terest and reinvestment of the funds, it appearing that property so situated within the limits of those States was there subject to taxa- tion. See also Missouri v. St. Louis County Court, 47 Mo. 594, 600; People v. Home Insurance Company, 28 Cal. 533 ; Billinghurst v. Spink County, 5 S. Dak. 84, y8 ; In re Jefferson, 35 Minn. 215 ; Poppleton v. Yamhill County, 18 Ore. 377 ; Redmond v. Commissioners, 87 N. C. 122 ; Finch v. York County, 19 Neb. 50. With reference to the decisions of this court, it may be said that there has never been any denial of the power of a State to tax securi- ties situated as these are, while there have been frequent recognitions of its power to separate for purposes of taxation the situs of personal property from the domicile of the owner. In State Tax on Foreign- held Bonds, 15 Wall. 300, it was held that while the taxing power of the State m&y extend to property within its territorial limits, it cannot to that which is outside those limits ; and, therefore, that bonds issued bj' a railroad company, although secured by a mortgage on property within the State, were not subject to taxation while in the possession of their owners who were non-residents, the court saying: "We are clear that the tax cannot be sustained ; that the bonds, being held by non-residents of the State, are only property in their hands, and that they are thus beyond the jurisdiction of the taxing power of the State." But in the same case, on page 323, the court declared: "It is un- doubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicile of its owner, will, in man}' cases, determine the State in which it may be taxed. The same thing is true of public securities consisting of State bonds and bonds of municipal bodies, and circulating notes of banking institu- tions. The former, by general usage, have acquired the character of, and are treated as, propert}' in the place where they are found, though removed from the domicile of the owner ; the latter are treated and pass as money wherever they are. But other personal property, con- sisting of bonds, mortgages, and debts generally, has no situs indepen- dent of the domicile of the owner, and certainly can have none where the instruments, as in the present case, constituting the evidences of debt, are not separated from the possession of the owners." This last sentence, properly construed, is not to be taken as a denial 256 NEW ORLEANS V. STEMPEL. [ CHAP. II. of the power of the legislature to establish an independent situs for bonds and mortgages when those properties are not in the possession of the owner, but simply that the fiction of law, so often referred to, declares their situs to be that of the domicile of the owner, a declara- tion which the legislature has no power to disturb when in fact they are in his possession. It was held in that case that a statute requiring the railroad company, the obligor in such bonds, to pay the State tax, and authorizing it to deduct the amount of such taxation from the interest due b} T the terms of the bond, was, as to non-residents, a law impairing the obligation of contracts. The same proposition was affirmed in Murray v. Charleston, 96 U. S. 432, where the city of Charleston attempted to tax its obligations held by non-residents of the State. In Tappan /'. Merchants' National Bank, 19 Wall. 490, the ruling was, that although shares of stock in national banks were in a certain sense intangible and incorporeal personal property, the law might separate them from the persons of their owners for purposes of taxation, and give them a situs of their own. See also Pullman's Car Company v. Pennsylvania, 141 U. S. 18, 22, where the question of the separation of personal property from the person of the owner for pur- poses of taxation was discussed at length ; as also the case of Savings Society v. Multnomah County, 169 U. S. 421, 427, in which a statute of Oregon taxing the interest of a mortgagee in real estate was ad- judged valid, although the owner of the mortgage was a non-resident. Nor is there anything in the case of Kirtland v. Hotchkiss, 100 U. S. 491, conflicting: with these decisions. It was there held that a State might tax one of its citizens on bonds belonging to him, although such bonds were secured by mortgage on real estate situated in another State. It was assumed that the situs of such intangible propert\ T as a debt evidenced by bond was at the domicile of the owner. There was no legislation attempting to set aside that ordinary rule in respect to the matter of situs. On the contrary, the legislature of the State of Connecticut, from which the case came, plainly reaffirmed the rule, and the court in its opinion summed up the case in these words (p. 499) : "Whether the State of Connecticut shall measure the contribution which persons resident within its jurisdiction shall make b} r wa} r of taxes, in return for the protection it affords them, by the value of the credits, choses in action, bonds or stocks which they may own (other than such as are exempted or protected from taxation under the Con- stitution and laws of the United States) is a matter which concerns only the people of that State, with which the Federal government can- not rightfully interfere." This matter of situs may be regarded in another aspect. In the absence of statute, bills and notes are treated as choses in action, and are not subject to levy and sale on execution ; but by the statutes of many States the}' are made so subject to seizure and sale as any tan- gible personal property. 1 Freeman on Executions, s. 112 ; 4 Am. & Eng. E. of L., 2d ed.\ 282; 11 Am. & Eng. E. of L., 2d ed., 623o SECT. II.] NEW ORLEANS I". STEMPEL. 25. Among the States referred to in these authorities as having statutes warranting such lew and sale are California, Indiana, Kentucky, New York, Tennessee, Iowa, and Louisiana. Brown r. Anderson, 4 Martin (N. S.), 416, affirmed the rightfulness of such a levy and sale. In linker v. Bullard, 2 La. Ann. 338, it was held that if a note was not taken into the actual possession of the sheriff, a sale by him on an execution conveved no title on the purchaser, the court saying: "In the case of Simpson v. Allain, it was held that, in order to make a valid seizure of tangihle property, it is necessary that the sheriff should take the property levied upon into actual possession. 7 Rob. 504. In the case of Gobeau v. The New Orleans & Nashville Railroad Com- pany, the same doctrine is still more distinctly announced. The court there says : ' From all the different provisions of our laws above re- ferred to, can it be controverted that, in order to have them carried into effect, the sheriff must necessarily take the property seized into his possession ? This is the essence of the seizure. It cannot exist without such possession.' G Rob. 348. It is clear, under these au- thorities, that the sheriff effected no seizure of the note in controversy, and consequently his subsequent adjudication of it conferred no title on Bailey." The same doctrine was reaffirmed in Stockton v. Stanbrough, 3 La. Ann. 390. Now, if property can have such a situs within the State as to be subject to seizure and sale on execution, it would seem to follow that the State has power to establish a like situs within the State for purposes of taxation. It has also been held that a note may be made the subject of seizure and deliver}' in a replevin suit. Graff v. Shannon, 7 Iowa, 508 ; Smith v. Eals, 81 Iowa, 235 ; Pritchard v. Norwood, 155 Mass. 539. It is well settled that bank bills and municipal bonds are in such a concrete tangible form that they are subject to taxation where found, irrespective of the domicile of the owner ; are subject to lev}' and sale on execution, and to seizure and delivery under replevin ; and yet they are but promises to pay, — evidences of existing indebtedness. Notes and mortgages are of the same nature ; and while they may not have become so generally recognized as tangible personal property, yet they have such a concrete form that we see no reason why a State may not declare that if found within its limits the} - shall be subject to taxation. It follows from these considerations that The decree of the Circuit Court must be reversed and the case remanded for further proceedings. 1 Harlan and White, JJ., dissenting. 1 Ace. Bristol v. Washington County, 177 II. S. 133; Walker v. Jack, 88 Fed. 576; P. v. Home Ins. Co., 29 Cal. 533; /» re Jefferson, 35 Minn. 217; S. v. Bentley, 23 N. J. L. 532. See Herron v. Keeran, 59 Ind. 472. — Ed. 258 BLACKSTONE V. MILLER. [CHAP. II. BLACKSTONE v. MILLER. Supreme Court of the United States. 1903. [Reported 188 U. S. 189.] Holmes, J. This is a writ of error to the Surrogate's Court of the county of New York. It is brought to review a decree of the court, sustained by the Appellate Division of th'e Supreme Court, 69 App. Div. 127, and by the Court of Appeals, 171 N. Y. 682, levying a tax on the transfer by will of certain property of Timothy B. Blackstoue, the testator, who died domiciled in Illinois. The property consisted of a debt of $10,692.21, due to the deceased by a firm, and of the net sum of $4,843,456.72, held on a deposit account by the United States Trust Company of New York. The objection was taken seasonably upon the record that the transfer of this property could not be taxed in New York consistently with the Constitution of the United States. The deposit in question represented the proceeds of railroad stock sold to a syndicate and handed to the Trust Company, which, by arrange- ment with the testator, held the proceeds subject to his order, paying interest in the meantime. Five days' notice of withdrawal was required, and if a draft was made upon the company, it gave its check upon one of its banks of deposit. The fund had been held in this way from March 31, 1899, until the testator's death on May 26, 1900. It is probable, of course, that he did not intend to leave the fund there forever and that he was looking out for investments, but he had not found them when he died. The tax is levied under a statute impos- ing a tax "upon the transfer of any property, real or personal. . . . 2. When the transfer is by will or intestate law, of property within the State, and the decedent was a non-resident of the State at the time of his death." Laws of 1896, c. 908, § 220, amended, Laws of 1897, c. 2S4 ; 3 Birdseye's Stat. 3d ed. 1901, p. 3592. The whole succession has been taxed in Illinois, the New York deposit being included in the appraisal of the estate. It is objected to the New York tax that the property was not within the State, and that the courts of New York had no jurisdiction ; that if the property was within the State it was only transitorily there, Hays v. Pacific Mail Steamship Co., 17 How. 596, 599, 600, that the tax impairs the obligation of contracts, that it denies full faith and credit to the judgment taxing the inheritance in Illinois, that it deprives the executrix and legatees of privileges and immunities of citizens of the State of New York, and that it is contrary to the Fourteenth Amendment. In view of the State decisions it must be assumed that the New York statute is intended to reach the transfer of this property if it can be reached. New Orleans v. Stempel, 175 U.S. 309, 316; Morley v. Lake Shore & Michigan Southern Railway Co., 146 U. S. 162, 166. We also must take it to have been found that the property was not in SECT. II.] BI.ACKSTOXK V. MILLER. 259 transitu in such a sense as to withdraw it from the power of the State, if otherwise the right to tax the transfer belonged to the State. The property was delayed within the jurisdiction of New York an indefinite time, which had lasted for more than a year, so that this finding at least was justified. Kelley v. Rhoads, 188 U. S. 1, and Diamond Match Co. v. Village of Ontonagon, 188 U. S. 84, present term. Both parties agree with the plain words of the law that the tax is a tax upon the transfer, not upon the deposit, and we need spend no time upon that. Therefore the naked question is whether the State has a right to tax the transfer by will of such deposit. The answer is somewhat obscured by the superficial fact that New York, like most other States, recognizes the law of the domicil as the law determining the right of universal succession. The domicil, natu- rally, must control a succession of that kind. Universal succession is the artificial continuance of the person of a deceased by an executor, heir, or the like, so far as succession to rights and obligations is con- cerned. It is a fiction, the historical origin of which is familiar to scholars, and it is this fiction that gives whatever meaning it has to the saving mobilia sequuntur personam. But being a fiction it is not al- lowed to obscure the facts, when the facts become important. To a considerable, although more or less varying, extent, the succession de- termined by the law of the domicil is recognized in other jurisdictions. But it hardly needs illustration to show that the recognition is limited by the policy of the local law. Ancillary administrators pay the local debts before turning over the residue to be distributed, or distributing it themselves, according to the rules of the domicil. The title of the principal administrator, or of a foreign assignee in bankruptcy, another type of universal succession, is admitted in but a limited way or not at all. See Crapo v. Kelly, 16 Wall. 610; Chipmau v. Manufacturers' National Bank, 156 Mass. 147, 148, 149. To come closer to the point, no one doubts that succession to a tan- gible chattel may be taxed wherever the property is found, and none the less that the law of the situs accepts its rules of succession from the law of the domicil, or that by the law of the domicil the chattel is part of a universitas and is taken into account again in the succession tax there. Kidman v. Martinez, 184 U. S. 578, 586, 587, 592. See Mager v. Grima, 8 How. 490, 493 ; Coe v. Krrol, 1 16 U. S. 51 7, 524 ; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; New Orleans v. Stempel, 175 U. S. 309 ; Bristol /;. Washington County, 177 U. S. 133; and for state decisions Matter of P^state of Romaine, 127 N. Y. 80; Callahan v. Woodbridge, 171 Mass. 593; Greves v. Shaw, 173 Mass. 205; Allen v. National State Bank, 92 Md 509. No doubt this power on the part of two States to tax on different and more or less inconsistent principles, leads to some hardship. It may be regretted, also, that one and the same State should be seen taxing on the one hand according to the fact of power, and on the other, at 260 BLACKSTONE V. MILLER. [ CHAP. II. the same time, according to the fiction that, in successions after death, mobilia sequuntur personam and domicil governs the whole. But these inconsistencies infringe no rule of constitutional law. Coe v. Errol, 116 U. S. 517, 524; Knowlton v. Moore, 178 U. S. 41. The question, then, is narrowed to whether a distinction is to be taken between tangible chattels and the deposit in this case. There is no doubt that courts in New York and elsewhere have been loath to recog- nize a distinction for taxing purposes between what commonly is called money in the bank and actual coin in the pocket. The practical simi- larity more or less has obliterated the legal difference. Matter of Houdayer, 150 N. Y. 37 ; New Orleans v. Stempel, 175 U. S. 309, 316 ; City National Bank v. Charles Baker Co., 180 Mass. 40, 42. In view of these cases, and the decision in the present case, which followed them, a not very successful attempt was made to show that by reason of the facts which we have mentioned, and others, the deposit here was unlike an ordinary deposit in a bank. We shall not stop to discuss this aspect of the case, because we prefer to decide it upon a broader view. If the transfer of the deposit necessarily depends upon and involves the law of New York for its exercise, or, in other words, if the transfer is subject to the power of the State of New York, then New York may subject the transfer to a tax. United States v. Perkins, 163 U. S. 625, 628, 629 ; McCulloch v. Maryland, 4 Wheat. 316, 429. But it is plain that the transfer does depend upon the law of New York, not because of any theoretical speculation concerning the whereabouts of the debt, but because of the practical fact of its power over the person of the debtor. The principle has been recognized by this court with regard to garnishments of a domestic debtor of an absent defendant. Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U. S. 710. See Wyraan v. Halstead, 109 U. S. 654. What gives the debt validity? Nothing but the fact that the law of the place where the debtor is will make him pay. It does not matter that the law would not need to be invoked in the particular case. Most of us do not commit crimes, yet we nevertheless are subject to the criminal law, and it affords one of the motives for our conduct. So again, wdiat enables any other than the verv creditor in proper person to collect the debt? The law of the same place. To test it, suppose that New York should turn back the current of legislation and extend to debts the rule still applied to slander that actio personalis moritur cum persona, and should provide that all debts hereafter con- tracted in New York and payable there should be extinguished by the death of either party. Leaving constitutional considerations on one side, it is plain that the right of the foreign creditor would be gone. Power over the person of the debtor confers jurisdiction, we repeat. And this being so we perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the State at the time of the death. The maxim mobilia sequuntur personam has no more truth in the one SECT.H.] BLACKSTOXE V. MILLER. 261 case than in the other. "When logic and the policy of a State conflict with a fiction due to historical tradition, the fiction must give way. There is no conflict between our views and the point decided in the case reported under the name of State Tax on Foreign Held Bonds, 15 Wall. 300. The taxation in that case was on the interest on bonds held out of the State. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335,337. Therefore, considering only the place of the property, it was held that bonds held out of the State could not be reached. The decision has been cut down to its precise point by later cases. Savings & Loan Society v. Multno- mah County, 169 U. S. 421, 428; New Orleans v. Stempel, 175 U. S. 309, 319, 320. In the case at bar the law imposing the tax was in force before the deposit was made, and did not impair the obligation of the contract, if a tax otherwise lawful ever can be said to have that effect. Pinney v. Nelson, 183 U. S. 144. 147. The fact that two States, dealing each with its own law of succession, both of which the plaintiff in error has to in- voke for her rights, have taxed the right which they respectively confer, gives no cause for complaint on constitutional grounds. Coe v. Enrol, 110 U. S. 517, 524 ; Knowlton v. Moore, 178 U. S. 53. The universal succession is taxed in one State, the singular succession is taxed in another. The plaintiff has to make out her right under both in order to get the money. See Adams v. Batchelder, 173 Mass. 258. The same considerations answer the argument that due faith and credit are not given to the judgment in Illinois. The tax does not deprive the plaintiff in error of any of the privileges and immunities of the citizens of New York. It is no such deprivation that if she had lived in New York the tax on the transfer of the deposit would have been part of the tax on the inheritance as a whole. See Mager r. Grirna, 8 How. 490 ; Brown v. Houston, 114 U. S. 622, 635 ; Wallace v. Myers, 38 Fed. Rep. 184. It does not violate the Fourteenth Amendment. See Magoun y. Illinois Trust & Savings Bank, 170 U. S. 283. Matters of state procedure and the correctness of the New York decree or judg- ment, apart from specific constitutional objections, are not open here. As we have said, the question whether the property was to be regarded as in transitu, if material, must be regarded as found against the plain- tiff in error. Decree affirmed. Mr. Justice White dissents. 262 UNION TRANSIT CO. V. KENTUCKY. [cilAP. II. UNION TRANSIT CO. v. KENTUCKY. Supreme Court of the United States. 1905. [Reported 199 U. S. 194.] Brown, J. In this case the question is directly presented whether a corporation organized under the laws of Kentucky is subject to taxa- tion upon its tangible personal property, permanently located in other States, and employed there in the prosecution of its business. Such taxation is charged to be a violation of the due process of law clause of the Fourteenth Amendment. Section 4020 of the Kentucky statutes, under which this assessment was made, provides that " All re•. Kentucky, L99 U. S. 194, 201, 211 ; Delaware, Lackawanna & Western R. R. v. Pennsylvania. 198 l*. S. 341 ; Louisville & Jeffersonville Ferry Co. ,-. Kentucky, 188 I'. S. 385. But it has not been decided, and it could not be decided, that a State may not tax its own corporations for all their property within the State during the tax year, even if every item of that property should be taken successively into another State for a day, a week, or six months, and then brought 272 METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CHAP. II. back. Using the language of domicil, which now so frequently is ap- plied to inanimate things, the State of origin remains the permanent situs of the property, notwithstanding its occasional excursions to foreign parts. Ayer & Lord Tie Co. v. Kentucky, May 21, 1906, 202 U. S. 409. See also Union Refrigerator Transit Co. v. Kentucky 199 U. S. 194, 208, 209. It was suggested that this case is but the complement of Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, and that as there a tax upou a foreign corporation was sustained, levied on such proportion of its capital stock as the miles of track over which its cars were run within the State bore to the whole number of miles over which its cars were run, so here in the domicil of such a corporation there should be an ex- emption corresponding to the tax held to be lawfully levied elsewhere. But in that case it was found that the " cars used in this State have, during all the time for which tax is charged, been running into, through and out of the State." The same cars were continuously receiving the protection of the State and, therefore, it was just that the State should tax a proportion of them. "Whether if the same amount of protection had been received in respect of constantly changing cars the same prin- ciple would have applied was not decided, and it is not necessary to decide now. In the present case, however, it does not appear that any specific cars or any average of cars Was so continuously in any other state as to be taxable there. The absences relied on were not in the course of travel upon fixed routes, but random excursions of casually chosen cars, determined by the varying orders of particular shippers and the arbitrary convenience of other roads. Therefore we need not consider either whether there is any necessan* parallelism between liability elsewhere and immunity at home. Judgments affirmed. METROPOLITAN LIFE INSURANCE COMPANY v. NEW ORLEANS. Supreme Court of the Uxited States. 1907. [Reported 205 U. S. 395.] Moody, J. This is a writ of error to review the judgment of the Supreme Court of Louisiana, which sustained a tax on the " credits, monej - loaned, bills receivable," etc., of the plaintiff in error, a life insurance company incorporated under the laws of New York, where it had its home office and principal place of business. It issued poli- cies of life insurance in the State of Louisiana and, for the purpose of doing that and other business, had a resident agent, called a superin- tendent, whose duty it was to superintend the compan} r 's business gen- erally in the State. The agent had a local office in New Orleans. The company was engaged in the business of lending money to the holders SECT. H.] METROPOLITAN LIFE I>:S. CO. V. NKW ORLEANS. 273 of its policies, which, when they had reached a certain point of maturity, were regarded as furnishing adequate security for loans. The money lending was conducted in the following manner: The policy holders desiring to obtain loans on their policies applied to the company's agent in New Orleans, li' the agent thought a loan a desirable one lie ad- vised the company of the application by communicating with the home office in New York, and requested that the loan be granted. If the home office approved the loan the company forwarded to the agent a check for the amount, with a note to be signed by the borrower. The agent procured the note to be signed, attached the policy to it, and for- warded both note and policy to the home office in New York. He then delivered to the borrower the amount of the loan. When interest was due upon the notes it was paid to the agent and by him transmitted to the home office. It does not appear whether or not the notes were re- turned to New Orleans for the endorsement of the payments of interest. When the notes were paid it was to the agent, to whom they were sent to be delivered back to the makers. At all other times the notes and policies securing them were kept at the home office in New Y^ork. The disputed tax was not eo nomine on these notes, but was expressed to be on "credits, money loaned, bills receivable," etc., and its amount was ascertained by computing the sum of the face value of all the notes held by the company at the time of the assessment. The tax was assessed under a law, Act 170 of 1898, which provided for a levy of annual taxes on the assessed value of all property situated within the State of Louisiana, and in Section 7 provided as follows : "That it is the duty of the tax assessors throughout the State to place upon the assessment list all property subject to taxation, including mer- chandise or stock in trade on hand at the date of listing within then- respective districts or parishes. . . . And prodded further, In assess- ing mercantile firms the true intent and purpose of this act shall be held toinean the placing of such value upon stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, &c, as will represent in their aggregate a fair average on the capital, both cash and credits, employed in the business of the party or parties to be assessed. And this shall apply with equal force to any person or persons repre- senting in this State business interests that may claim domicile else- where, the intent and purpose being that no non-resident, either by himself or through any agent, shall transact business here without paying to the State a corresponding tax with that exacted of its own citizens ; and all bills receivable, obligations or credits arising from the business done in this State are hereby declared as assessable within this State and at the business domicile of said non-resident, his agent or representative." The evident purpose of this law is to lay the burden of taxation equallv upon those who do business within the State. It requires that in the valuation for the purposes of taxation of the property of mercan- tile firms the stock, goods, and credits shall be taken into account, to 274 METROPOLITAN" LIFE INS. CO. V. NEW ORLEANS. [ciIAP. II. the end that the average capital employed in the business shall be taxed. This method of assessment is applied impartially to the citizens of the State and to the citizens of other States or countries doing business, personally or through agents, within the State of Louisiana. To accom- plish this result, the law expressly provides that " all bills receivable, obligations or credits arising from the business done in this State shall be assessable at the business domicile of the resident." Thus it is clear that the measure of the taxation designed by the law is the fair average of the capital employed in the business. Cash and credits and bills receivable are to be taken into account mereby because they represent the capital and are not to be omitted because their owner happens to have a domicile in another State. The law was so construed by the Supreme Court of Louisiana, where, in sustaining the assessment, it was said : "There can be no doubt that the seventh section of the act of 1898, quoted in the judgment of the District Court, announced the policy of the State touching the taxation of credits and bills of exchange repre- senting an amount of the property of non-residents equivalent or corre- sponding to said bills or credits which was utilized by them in the prosecution of their business in the State of Louisiana. The evident object of the statute was to do away with discrimination theretofore ex- isting in favor of non-residents as against residents, and place them on an equal footing. The statute was not arbitrary, but a legitimate exer- cise of legislative power and discretion." The tax was levied in obedience to the law of the State, and the only question here is whether there is anything in the Constitution of the United States which forbids it. The answer to that question depends upon whether the property taxed was within the territorial jurisdiction of the State. Property situated without that jurisdiction is beyond the State's taxing power, and the exaction of a tax upon it is in violation of the Fourteenth Amendment to the Constitution. Louisville Feny Co. v. Kentucky, 188 U. S. 385 : Delaware, &c, Railroad Co. v. Penn- sylvania, 198 U. S. 341 ; Union Refrigerator Transit Co. ?;. Kentucky, 199 U. S. 194. But personal property may be taxed in its permanent abiding place, although the domicile of the owner is elsewhere. It is usually easy to determine the taxable situs of tangible personal property. But whei'e personal property is intangible, and consists, as in this case, of credits reduced to the concrete form of promissory notes, the inquiry is complicated, not only by the fiction that the domicile of personal propertj T follows that of its owner, but also by the doctrine, based upon historical reasons, that where debts have assumed the form of bonds or other specialties, they are regarded for some purposes as being the property itself, and not the mere representative of it, and may have a taxable situs of their own. How far promissory notes are assimilated to specialties in respect of this doctrine, need not now be considered. The question in this case is controlled by the authority of the pre- vious decisions of this court. Taxes under this law of Louisiana have SECT.H.] MI-.TKOI'OLITAX LIFE INS. CO. V. NEW ORLEANS. 273 been twice considered here, and assessments upon credits arising out of investments in the State have been sustained. A tax on credits evi- denced by notes secured by mortgages was sustained where the owner, a non-resident who had inherited them, left them in Louisiana in the possession of an agent, who collected the principal and interest as they became due. New Orleans v. Stempel, 17.") L\ S. 309. Again, it was held that where a foreign banking company did business in New Orleans, and through an agent lent monev which was evidenced by checks drawn upon the agent, treated as overdrafts and secured by collateral, the checks and collateral remaining in the hands of the agent until the trans- actions were closed, the credits thus evidenced were taxable in Loui- siana. Board of Assessors v. Comptoir National, 191 TJ. S. 388. In both of these cases the written evidences of the credits were continuously present in the State, and their presence was clearly the dominant factor in the decisions. Here the notes, though present in the State at all times when they were needed, were not continuously present, and during the greater part of their lifetime were absent and at their owner's dom- icile. Between these two decisions came the case of Bristol v. Wash- ington County. 177 U. S. 133. It appeared in that case that a resident of New York was engaged through an agent in the business of lending money in Minnesota, secured by mortgages on real property. The notes were made to the order of the non-resident, though payable in Minnesota, and the mortgages ran to her. The agent made the loans, took and kept the notes and securities, collected the interest and re- ceived payment. The property thus invested continued to be taxed without protest in Minnesota, until finally the course of business was changed by sending the notes to the domicile of the owner in New York, where they were kept by her. The mortgages were, however, retained by the agent in Minnesota, though his power to discharge them was revoked. The interest was paid to the agent and the notes forwarded to him for collection when due. Taxes levied after this change in the business were in dispute in the case. In delivering the opinion of the court, Mr. Chief Justice Fuller said: "Nevertheless, the business of loaning money through the agency in Minnesota was continued during all these years, just as it had been carried on before, and we agree with the Circuit Court that the fact that the notes were sent to Mrs. Bristol iu New York, and the fact of the revocation of the power of attorney, did not exempt these investments from taxation under the statutes as expounded in the decisions to which we have referred. ..." Referring to the case of New Orleans v. Stempel, the Chief Justice said : "There the moneys, notes, and other evidences of credits were in fact in Louisiana, though their owners resided elsewhere. Still, under the circumstances of the case before us. we think, as we have said, that the mere sending of the notes to New York and the revocation of the power of attorney did not take these investments out of the ride. " Persons are not permitted to avail themselves, for their own benefit. 27G METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [ CHAP. II. of the laws of a State in the conduct of business within its limits, and then to escape their due contribution to the public need, through action of this sort, whether taken for convenience or by design." Accordingly it was held that the tax was not forbidden by the Fed- eral Constitution. In this case, the controlling consideration was the presence in the State of the capital employed in the business of lending money, and the fact that the notes were not continuously present was regarded as immaterial. It is impossible to distinguish the case now before us from the Bristol case. Here the loans were negotiated, the notes signed, the security taken, the interest collected, and the debts paid within the State. The notes and securities were in Louisiana whenever the business exi- gencies required them to be there. Their removal with the intent that they shall return whenever needed, their long continued though not per- manent absence, cannot have the effect of releasing them as the repre- sentatives of investments in business in the State from its taxing power. The law may well regard the place of their origin, to which they intend to return, as their true home, and leave out of account temporary ab- sences, however long continued. Moreover, neither the fiction that personal property follows the domicile of its owner, nor the doctrine that credits evidenced by bonds or notes may have the situs of the lat- ter, can be allowed to obscure the truth. Blackstone v. Miller. 188 U. S. 189. We are not dealing here merely with a single credit or a series of separate credits, but with a business. The insurance company chose to enter into the business of lending money within the State of Louisiana, and employed a local agent to conduct that business. It was conducted under the laws of the State. The State undertook to tax the capital employed in the business precisely as it taxed the capital of its own citizens in like situation. For the purpose of arriving at the amount of capital actually employed, it caused the credits arising out of the business to be assessed. We think the State had the power to do this, and that the foreigner doing business cannot escape taxation upon his capital by removing temporarily from the State evidences of credits in the form of notes. Under such circumstances, the}' have a taxable situs in the State of their origin. The judgment of the Supreme Court of Louisiana is Affirmed. SECT. II.] IX RE ESTATE OF SWIFT. 277 In re ESTATE OF SWIFT. Court of Appeals of New York. 1893. [Reported 137 New York, 77.] Gray, J. James T. Swift died in July, 1890, being a resident of this State and leaving a will, by which he made a disposition of all his property among relatives. After many legacies of money and of various articles of personal property, he directed a division of his residuary estate into four portions, and he devised and bequeathed one portion to each of four persons named. The executors were given a power of sale for the purpose of paying the legacies and of making the distribution of the estate. At the time of his death, the testator's estate included certain real estate and tangible personal property in chattels, situated within the State of New Jersey, which were realized upon by the executors and converted into moneys in hand. When, upon their application, an appraisement was had of the estate, in order to fix its value under the requirements of the law taxing gifts, legacies, and inheritances, the surrogate of the county of New York, before whom the matter came, held, with respect to the appraisement, that the real and personal property situated without the State of New York were not subject to appraisal and tax under the law, and the excep- tions taken by the comptroller of the city of New York to that deter- mination raise the first and the principal question which we shall consider. Surrogate Ransom's opinion, which is before us in the record, con- tains a careful review of the legal principles which limit the right to impose the tax, and his conclusions are as satisfactory to my mind, as they evidently were to the minds of the learned justices of the General Term of the Supreme Court, who agreed in affirming the surrogate's decree upon his opinion. The Attorney-General has argued that this law, commonly called the collateral inheritance tax law, imposes not a property tax but a charge for the privilege of acquiring property, and, as I apprehend it, the point of his argument is that, as there is no absolute right to succeed to property, the State has a right to annex a condition to the permis- sion to take by will, or by the intestate laws, in the form of a tax, to be paid by the persons for whose benefit the remedial legislation has been enacted. That is, substantially, the way in which he puts the proposition, and if the premise he true that the tax imposed is upon the privilege to acquire, and, as he says in his brief, is like " a duty imposed, payable by the beneficiary," possibly enough, we should have to agree with him. We might think, in that view of the act, that the situs of property in a foreign jurisdiction was not a controlling circum- stance. But if we take up the provisions of the law by which the t:i\ is imoosed. and if we consider them as they are framed and the priii- 278 IX EE ESTATE OF SWIFT. [ CHAP. II. ciple which then seems to underlie the peculiar system of taxation created, I do not think that his essential proposition finds adequate support. The law in force at the time of the decease of the testator is contained in chapter 713 of the Laws of 1887, amending chapter 483 of the Laws of 1885, and is entitled k< An act to tax gifts, legacies, and collateral inheritances in certain cases." By the first section it is provided that " all property which shall pass by will . . . from any person who may die seized or possessed of the same, while a resident of this State, or, if such decedent was not a resident of this State at the time of his death, which property or any part thereof shall be within this State, . . . shall be and is subject to a tax ... to be paid ... for the use of the State," etc. In the fourth section it is provided that " all taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent," etc. By the sixth section, it is provided that the executor shall " deduct the tax from the legacy or property, subject to said tax, or if the legacy or property be not money, he shall collect the tax thereon upon the appraised value thereof from the legatee, or person entitled to such property, and he shall not deliver, or be compelled to deliver, any spe- cific legacy or property subject to tax to any person until he shall have collected the tax thereon," etc. The language of the act has been justly condemned, for being involved and difficult to read clearly; but considering the language employed in these and in other sections of the law, in its ordinary sense, I think we would at once say that if the legislature had not actually imposed a tax upon the property itself, upon the death of its owner, it had certainly intended to impose a tax upon its succession, which was to be a charge upon the property, and which operated, in effect, to diminish pro tanto its value, or the capi- tal, coming to the new owner under a will, or by the intestate laws. Could any one say, after reading the provisions of this law, that it was the legatee, or person entitled, who was taxed? I doubt it. Property, which was the decedent's at the time of his death, is subjected to the payment of a tax. The tax is to be deducted from the legacy ; or, when deduction is not possible from the legacy not being in money, and a collection from the legatee or the person entitled to the property is authorized to be made, the tax so to be collected is described as " the tax thereon," that is, on the property. If it should be said that such an interpretation of the law is in con- flict with a doctrine which some judges have asserted, respecting the nature of this tax, I think it might be sufficient to say that the phrase- ology of the New York law differs, more or less, from that of other States, and seems peculiarly to charge the subject of the succession with the payment of the tax. But I do not think it at all important to our decision here that we should hold it to be a tax upon property precisely. A precise definition of the nature of this tax is not essential, if it is SECT. II.] IX KE ESTATE OF SWIFT. 279 susceptible of exact definition. Thus far, in this court, we have not thought it necessary, in the cases coming before us, to determine whether the object of taxation is the property which passes, or not ; though, in some, expressions may be found which seem to regard the tax in that light. Matter of McPherson, 104 N. Y. 306; Matter of Enston, 113 id. 174; Matter of Sherwell, 125 id. 379; Matter of Ro- maine, 127 id. 80 ; and Matter of Stewart, 131 id. 274. The idea of this succession tax, as we ma} 7 conveniently term it, is more or less compound ; the principal idea being the subjection of property, owner- ship of which has ceased by reason of the death of its owner, to a diminution, b}- the State reserving to itself a portion of its amount, if in money, or of its appraised value, if in other forms of property. The accompanying, or the correlative idea should necessarily be that the property, over which such dominion is thus exercised, shall be within the territorial limits of the State at its owner's death, and, therefore, subject to the operation and the regulation of its laws. The State, in exercising its power to subject realty, or tangible property, to the operation of a tax, must, bj r every rule, be limited to property within its territorial confines. The question here does not relate to the power of the State to tax its residents with respect to the ownership of property situated else- where. That question is not involved. The question is whether the legislature of the State, in creating this system of taxation of inherit- ances, or testamentary gifts, has not fixed as the standard of right the property passing by will, or by the intestate laws. What has the State done, in effect, by the enactment of this tax law? It reaches out and appropriates for its use a portion of the property at the moment of its owner's decease , allowing only the balance to pass in the way directed by testator, or permitted by its intestate law, and while, in so doing, it is exercising an inherent and sovereign right, it seems very clear to my mind that it affects only property which lies within it, and, consequently, is subject to its right of eminent domain. The theory of sovereignty, which invests the State with the right and the power to permit and to regulate the succession to property upon its owner's decease, rests upon the fact of an actual dominion over that property. In exercising such a power of taxation, as is here in question, the principle, obviously, is that all property in the State is tributary for such a purpose and the sovereign power takes a portion, or percentage of the property, not because the legatee is subject to its laws and to the tax, but because the State has a superior right, or ownership, by force of which it can intercept the property, upon its owner's death, in its passage into an ownership regulated by the en- abling legislation of the State. The rules of taxation have become pretty well settled, and it is fun- damental among them that there shall be jurisdiction over the subject taxed; or, as it has been sometimes expressed, the taxing power of the State is coextensive with its sovereignty. Jt has not the power to 280 IN RE ESTATE OF SWIFT. [ CHAP. II. tax directly either lands or tangible personal property situated in an- other State or country. As to the latter description of property no fiction transmuting its situs to the domicile of the owner is available, when the question is one of taxation. In this connection the observa- tions of Chief Judge Comstock, in Hoyt v. Commissioners of Taxes, 23 N. Y. 224, and of some text-writers, are not inappropriately referred to. He had said that lands and personal property having an actual situation within the State are taxable, and, by a necessary implication, that no other property can be taxed. He says, further, ''If we say that taxation is on the person in respect to the property, we are still without a reason for assessing the owner resident here in respect to one part of his estate situated elsewhere and not in respect to another part. Both are the subjects of taxation in the foreign jurisdiction." In Judge Cooley's work on Taxation it is remarked (p. 159) that " a State can no more subject to its power a single person, or a single article of property, whose residence or situs is in another State, than it can subject all the citizens, or all the property of such other State to its power." Judge Cooley had reference in his remarks to the case of bonds of a railroad ; for he cites the case of ' ' the State Tax on Foreign-Held Bonds " in the United States Supreme Court (15 Wallace, 300), where Mr. Justice Field delivered the opinion, and, in the course of it, observed that " the power of taxation, however vast in its character and search- ing in its extent, is necessarily limited to subjects within the jurisdic- tion of the State." Judge Story, in his work on the Conflict of Laws, speaking of the subject of jurisdiction in regard to property, said (section 550) that the legal fiction as to the situs of movables yields when it is necessary for the purpose of justice, and, further, " a nation within whose terri- tory any personal property is actually situated has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there." The proposition which suggests itself from reasoning, as from author- ity, is that the basis of the power to tax is the fact of an actual domin- ion over the subject of taxation at the time the tax is to be imposed. The effect of this special tax is to take from the property a portion, or a percentage of it, for the use of the State, and I think it quite immaterial whether the tax can be precisely classified with a taxation of property or not. It is not a tax upon persons. If it is called a tax upon the succession to the ownership of property, still it relates to and subjects the property itself, and when that is without the jurisdic- tion of the State, inasmuch as the succession is not of property within the dominion of the State, succession to it cannot be said to occur by permission of the State. As to lands this is clearly the case, and rights in or power over them are derived from or through the laws of the foreign State or country. As to goods and chattels it is true ; for their transmission abroad is subject to the permission of and regulated SECT. II.] IX EE ESTATE OF SWIFT. 2S1 by the laws of the State or country where actually situated. Jurisdic- tion over them belongs to the courts of that State or country for all purposes of policy, or of administration in the interests of its citzens, or of those having enforceable rights, and their surrender, or transmis- sion, is upon principles of comity. When succession to the ownership of property is by the permission of the State, then the permission can relate only topropert\- over which the State has dominion and as to which it grants the privilege or permission. Nor is the argument available that, by the power of sale conferred upon the executors, there was an equitable conversion worked of the lands in New Jersev - , as of the time of the testator's death, and, hence, that the property sought to be reached by the tax, in the e}-e of the law, existed as cash in this State in the executor's hands, at the moment of the testator's death. There might be some doubt whether the main proposition in the argument is quite correct, and whether the land did not vest in the residuary legatees, subject to the execution of the power of sale. But it is not necessary to decide that question. Neither the doctrine of equitable conversion of lands, nor any fiction of situs of movables, can have any bearing upon the question under advisement. The question of the jurisdiction of the State to tax is one of fact and cannot turn upon theories or fictions ; which, as it has been observed, have no place in a well adjusted system of taxation. We can arrive at no other conclusion, in my opinion, than that the tax provided for in this law is only enforceable as to property which, at the time of its owner's death, was within the territorial limits of this State. As a law imposing a special tax, it is to be strictly construed against the State and a case must be clearly made out for its application. We should incline against a construction which might lead to double taxation ; a result possible and probable under a dif- ferent view of this law. If the property in the foreign jurisdiction was in land, or in goods and chattels, when, upon the testator's death, a new title, or ownership, attached to it, the bringing into this State of its cash proceeds, subsequently, no matter by what authority of will, or of statute, did not subject it to the tax. A different view would be against every sound consideration of what constitutes the basis for such taxation, and would not accord with an understanding of the intention of the legislature, as more or less plainly expressed in these acts. Another question, which I shall merely advert to in conclusion, arises upon a ruling of the surrogate with respect to appraisement, in connection with a clause of the will directing that the amount of the tax upon the legacies and devises should be paid as an expense of administration. The appraiser, in ascertaining Hie value of the residu- ary estate for the purpose of taxation, deducted the amount of the tax to be assessed on prior legacies. The surrogate overruled him in this, and held that there should be no deduction from the value of the resid- 282 FE.OTHINGHAM V. SHAW. [ CHAP. II. uary estate of the amount of the tax to be assessed, either upon prior legacies, or upon its value. He held that the legacies taxable should be reported, irrespective of the provision of the will ; and that a mode of payment of the succession tax prescribed by will is something with which the statute is not concerned. I am satisfied with his reasoning and can add nothing to its force. Manifestly, under the law that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the will, without any deduction for any purpose, or under any testamentary direction. A question is raised as to the effect upon the law, as contained in the acts of 1885 and 1887, of the passage of chapter 215 of the Laws of 1891 ; but as that has been the subject of another appeal, and is fully discussed in the opinion in the Matter of the Estate of Prime, 136 N. Y. 347, reference will be made to it here. My brethren are of the opinion that the tax imposed under the act is a tax on the right of succession, under a will, or by devolution in case of intestacy ; a view of the law which my consideration of the question precludes my assenting to. They concur in my opinion so far as it relates to the imposition of a tax upon real estate situated out of this State, although owned by a decedent, residing here at the time of his decease ; holding with me that taxation of such was not intended, and that the doctrine of equi- table conversion is not applicable to subject it to taxation. But as to the personal property of a resident decedent, wheresoever situated, whether within or without the State, they are of the opinion that it is subject to the tax imposed by the act. The judgment below, therefore, should be so modified as to exclude from its operation the personal property in New Jersey, and, as so modified, it should be affirmed, without costs to either party as against the other. 1 FROTHING HAM v. SHAW. Supreme Judicial Court of Massachusetts. 1899. [Reported 175 Massachusetts, 59.] Morton, J. This is a petition by the plaintiff, as executor of the will of one Joseph Frothingham, for instructions in regard to the pay- ment of a collateral inheritance tax on the residuary legacies. The case was heard on agreed facts, and comes here by successive appeals from decrees of the probate court and of a single justice of this court finding that the tax was payable, and directing the executor to pay the same. At the time of his death the testator was domiciled at Salem, in this Commonwealth, and his estate, except certain real estate situ- » See In re Branson, 150 N. Y. 1. — Ed. SECT. II.] FROTHING HAM l\ SHAW. 283 ated here, and appraised at 82 100, and cash in a savings bank in Salem amounting to §993, was, aud for inan\- years had been, in the hands of his agents in New York, and consisted of bonds and stock of foreign corporations, a certificate of indebtedness of a foreign cor- poration, bond secured by mortgage on real estate in New Hampshire, the makers living in New York, and of cash on deposit with a savings bank and with individuals in Brooklyn ; the total being upwards of 840,000. There has been no administration in New York, and the petitioner has taken possession of all the property except the real estate, and has paid all of the debts and legacies except the residuary legacies. None of the legacies are entitled to exemption if otherwise liable to the tax. The appellants contend that the stocks, bonds, etc., were not " property within the jurisdiction of the Commonwealth," within the meaning of St. 1891, c. 425, § 1, and that, if the}* were, the succession took place by virtue of the law of New York, and not of this State. It is clear that, if the question of the liability of the tes- tator to be taxed in Salem for the property had arisen during his life- time, he would have been taxable for it under Pub. St. c. 11, §§ 4, 20, notwithstanding the certificates, etc., were in New York (Kirkland v. Hotchkiss, 100 U. S. 491; State Tax on Foreign-Held Bonds Case, 15 Wall. 300; Cooley, Tax'n [2d ed.], 371); and the liability would have extended to and included the bonds secured by mortgage (Kirk- land v. Hotchkiss, supra ; State Tax on Foreign-Held Bonds Case, supra; Hale v. Commissioners, 137 Mass. 111). It is true that the Public Statutes provide that personal property, wherever situated, whether within or without the Commonwealth, shall be taxed to the owner in the place where he is an inhabitant. But it is obvious that the legislature cannot authorize the taxation of property over which it has no control, and the principle underlying the provision is that personal property follows the person of the owner, and properly may be regarded, therefore, for the purposes of taxation, as having a situs at his domicile, and as being taxable there. After the testator's death the property would have been taxable to his executors for three j'ears, or till distributed and paid over to those entitled to it, and notice thereof to the assessors ; showing that the fiction, if it is one, is con- tinued for the purposes of taxation after the owner's death. Pub. St. c. 11, § 20, cl. 7; Hardy v. Inhabitants of Yarmouth, G Allen, 277. In the present case the tax is not upon property as such, but upon the privilege of disposing of it by will, and of succeeding to it on the death of the testator or intestate ; and it " has," as was said in Minot v. Winthrop, infra, " some of the characteristics of a duty on the administration of the estates of deceased persons." Minot v. Win- throp, 162 Mass. 113; Callahan v. Woodbridge, 171 Mass. 5:i."> ; Greves '•. Shaw, L73 Mass. 205; Moody v. Shaw, 173 Mass. 375. In arriving at the amount of the tax, the property within the jurisdiction of the Commonwealth is considered, and we see no reason for suppos- ing that the legislature intended to depart from the principle heretofore 28-i FltOTHINGHAM V. SHAW. [dlAP. II. adopted, which regards personal property, for the purposes of taxation, as having a situs at the domicile of its owner. This is the general rule (Cooley, Tax'n [2d ed.], 372), and, though it may and does lead to double taxation, that lias not been accounted a sufficient objection to taxing personal property to the owner during his life at the place of his domicile, and we do not see that it is a sufficient objection to the imposition of succession taxes or administration duties, under like circumstances, after his death. In regard to the mortgage bonds, it is to be noted, in addition to what has been said, that this case differs from Callahan v. Woodbridge, supra. In that case the testator's domicile was in New York, and it does not appear from the opinion that the note and mortgage deed were in this State. In this case the domicile was in this Commonwealth, and we think that, for the purposes of taxation, the mortgage debt may be regarded as having a situs here. This is the view taken in Hanson, Death Duties (4th ed.), 239, 240, which is cited apparently with approval by Mr. Dicey, though he calls attention to cases which may tend in another direction. See Dicey, Confl. Laws, 319, note 1. It seems to us, therefore, that for the purposes of the tax in question the property in the hands of the executor must be regarded as having been within the jurisdiction of this Commonwealth at the time of the testator's death. See In re Swift, 137 N. Y. 77 ; In re Miller's Estate, 182 Pa. St. 162. The petitioner further contends that the succession took place by virtue of the law of New York. But it is settled that the succession to movable property is governed by the law of the owner's domicile at the time of his death. This, it has been often said, is the universal rule, and applies to movables wherever situated. Stevens v. Gaylord, 11 Mass. 256 ; Dawes v. Head, 3 Pick. 129, 144, 145 ; Fay v. Haven, 3 Mete. (Mass.) 109; Wilkins v. Ellett, 9 Wall. 740; id. 108 U. S. 256 ; Freke v. Carbery, L. R. 16 Eq. 461 ; Attorney-General v. Camp- bell, L. R. 5 H. L. 524; Duncan v. Lawson, 41 Ch. Div. 394 ; Sill v. Worswick, 1 H. Bl. 690 ; Dicey, Confl. Laws, 683 ; Story, Confl. Laws (7th ed.), §§ 380, 481. If there are movables in a foreign country, the law of the domicile is given an extra-territorial effect by the courts of that country, and in a just and proper sense the succession is said to take place by force of, and to be governed by, the law of the domi- cile. Accordingly it has been held that legacy and succession duties, as such, were payable at the place of domicile in respect to movable property wherever situated, because in such cases the succession or legacy took effect by virtue of the law of domicile. Wallace v. Attor- ney-General (1865) 1 Ch. App. 1 ; Dicey, Confl. Laws, 785 ; Hanson, Death Duties (4th ed.), 423, 526. With probate or estate or adminis- tration duties, as such, it is different. They are levied in respect of the control which every government has over the property actually situated within its jurisdiction, irrespective of the place of domicile. Laidley v. Lord Advocate, 15 App. Cas. 468, 483 ; Hanson, Death Duties (4th ed.), 2, 63. Of course, any state or country may impose SECT, n.] FEOTHINGHAM V. SHAW. 285 a tax, and give it such name or no name as it chooses, which shall embrace, if so intended, the various grounds upon which taxes are or may be levied in respect of the devolution of estates of deceased persons, and which shall be leviable according as the facts in each particular case warrant. In England, for instance, the " estate duty," as it is termed, under the Finance Act of 1894 (57 & 58 Vict. c. 30), has largely superseded the probate duty, and under some circumstances takes the place of the legacy and succession duty also. Hanson, Death Duties (4th ed.), 62, 63, 81. But, whatever the form of the tax, the succession takes place and is governed by the law of the domicile, and if the actual situs is in a foreign country, the courts of that country cannot annul the succession established by the law of the domicile". Dammert v. Osborn, 141 N. Y. 564. In' further illustration of the extent to which the law of the domicile operates, it is to be noted that the domicile is regarded as the place of principal administration, and any other administration is ancillary to that granted there. Payment by a foreign debtor to the domiciliary administrator will be a bar to a suit brought by an ancillary administrator subsequently appointed. Wilkins v. Ellett, supra : Stevens v. Gaylord, supra; Hutchins v. Bank, 12 Mete. (Mass.) 421 ; Martin v. Gage, 147 Mass. 204. And the domiciliary administrator has sufficient standing in the courts of another State to appeal from a decree appointing an ancillary adminis- trator. Smith v. Sherman. 4 Cush. 408. Moreover, it is to he observed — if that is material — that there has been no administration in New York, that the executor was appointed here, and has taken possession of the property by virtue of such appointment, and must distribute it and account for it according to the decrees of the courts of this Com- monwealth. To say, therefore, that the succession has taken place by virtue of the law of New York, would be no less a fiction than the petitioner insists that the maxim, Mobilia sequuntur personam, is when applied to matters of taxation. The petitioner contends that in Callahan v. Woodbridge, svpra, it was held that the succession to the personal property in this State took place by virtue of the law of this State, although the testator was domiciled in New York. We do not so understand that case. That case and Greves v. Shaw, supra, and Moody v. Shaw, supra, rest on the right of a State to impose a tax or duty in respect to the passing on the death of a non-resident of personal property belonging to him, and situated within its jurisdiction. We think that the decree should lie affirmed. 1 Soordwif. 1 For the English doctrines as to the effect of their Revenue Laws oi n-residents and on foreign property, Bee Dicey, Conflicl of Laws, 781. For cases on the Income Tax, see Calcutta Jute Mills v. Nicholson l Ex D 428* Colquhoun v. Brooks. 14 App. Cas. 498. Ou Probate Dutv, see Alt. -Cm ,■ II,,,,,. lC. M.&R. 530;Sudeley v. Att.-Gen., [1897] A. C. 11. On Legacy Duty ee rhompson v. Adv.-Gen., 12 CI. .v F. l ; t'hatfielH v. Bcrehtoldt, L. R. 7 Ch" 192 On Succession Duties, see Att.-Gen. v. Campbell, L It. 6 II. L. 524 ; Wallace* Att- Gen., L. R. 1 Ch. 1. — Ed. 286 MATTER OF COOLEY. [ CHAP. II. MATTER OF COOLEY. Court of Appeals, New York. 1906. [Reported 186 iV. Y. 220.] Hiscock, J. The appellants complain because in fixing the transfer tax upon certain shares of the capital stock of the Boston and Albany Railroad Company which belonged to the estate and passed under the will of the deceased who was a non-resident, said stock lias been ap- praised at its full market value as representing an interest in the prop- erty of said corporation situate both in the State of New York and elsewhere. It is insisted by them that under the peculiar facts of this case the valuation placed for such purpose upon the stock should not have been predicated upon the idea that the latter represented an in- terest in all of the property of said corporation, but should have been fixed upon the theory that it represented an interest in only a portion of said property. I think that their complaint is well founded and that the order appealed from should be reversed and the assessment corrected accordingly. The Boston and Albany Railroad Company is a consolidation formed bv the merger of one or more New York corporations and one Massa- chusetts corporation. The merger was authorized and the said consoli- dated corporation duly and separately created and organized under the laws of each state. It was, so to speak, incorporated in duplicate. There is but a single issue of capital stock representing all the prop- erty of the consolidated and dual organization. Of the track mileage about five-sixths is in Massachusetts and one-sixth in New York. The principal offices, including the stock transfer office, are situated in Boston, and there also are regularly held the meetings of its stock- holders and directors. The deceased was a resident of the State of Connecticut, and owned four hundred and twenty-six shares of the capital stock, the value of which for the purposes of the transfer tax was fixed at the full market value of $252.50 per share of the par value of $100. The provisions of the statute (L. 1896, ch. 908, § 220, as amd. L. 1897, ch. 284, § 2), authorizing the imposition of this tax are familiar,, and read in part as follows : " A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein ... in the following cases : . . . " 2. When the transfer is by will or intestate law, of property within the State, and the decedent was a non-resident of the State at the time of his death." The present assessment is under the last clause, and as already inti- SECT. II.] .MATTER OF COOLEY. 281 mated, the sole question, stated in practical form, is whether tho authorities of this State ought to levy a tax upon the full value of de- cedent's holdings, recognizing simply the New York corporation and regarding it as the sole owner of all of the property of the doubly in- corporated New York-Massachusetts corporation, or whether they should limit the tax to a portion of the total value, upon the theory that the company holds its property in Massachusetts at least under its incorporation in that State. By seeking the aid of our laws and becoming incorporated under them, the consolidated Boston and Albany Railroad Company became a domestic corporation. (.Matter of Sage, 70 X. Y. 220.) The decedent, therefore, as the owner of Boston and Albany stock, may be regarded as holding stock in a domestic corporation, and it is so clearly settled that we need only state the proposition that capital stock in a domestic corporation, although held by a non-resident, will be re- garded as having its situs where the corporation is organized, and is, therefore, taxable in this State. (Matter of Bronson, 150 N. Y. 1.) There is, therefore, no question but that the decedent, holding stock in the Boston and Albany road, which was incorporated under the laws of this State, left " property within the State " which is taxable here. There is no doubt about the meaning of " property within the State," as applied to this situation, or that it justifies a taxation by our au- thorities of decedent's interest as a shareholder in the corporation created under the laws of this State. The only doubt is as to the extent and value of that interest for the purposes of this proceeding. For, although the tax is upon the transfer and not upon the property itself, still its amount is necessarily measured by the value of the property transferred, and, therefore, we come to consider briefly the nature of the stock here assessed as property and the theory upon which its value should be computed. The general nature of a shareholder's interest in the capital stock of a corporation is easily understood and defined. In Plympton v. Bige- low (93 N. Y. 592; it is said that " The right which a shareholder in a corporation has by reason of his ownership of shares is a right to par- ticipate according to the amount of his stock in the surplus profits of the corporation on a division, and ultimately on its dissolution, in the assets remaining after payment of its debts." In Jermain v. L. S. & M. S. Ry. Co. (91 N. Y. 483, 491) it was said : " A share of stock represents the interest which the shareholder has in the capital and net earnings of the corporation." Therefore, since the shares of capital stock under discussion repre- sented a certain interest in the surplus of assets over liabilities of the Boston and Albany Railroad Company, the value of that stock is to be decided by reference to the amount of property which said railroad com- pany as incorporated in this State is to be regarded as owning for the purposes of this proceeding. 288 MATTER OF COOLEY. [CHAP. II. In the majority of cases at least a corporation has but a single corporate creation and existence under the laws of one State, and by virtue of such single existence owns all of its corporate property. There is no difficulty in determining in such a case that a shareholder under such an incorporation has an interest in all of the corporate property wherever and in how many different States situated. I shall have occasion to refer to that principle hereafter in another connection. Even in the case of a corporation incorporated and having a separate existence under the laws of more than one State, the stockholder would for some purposes be regarded as having an interest in all the cor- porate property independent of the different incorporations. In the present case the decedent, by virtue of his stock as between him and the corporation, would be regarded as having an interest in all of its property and entifled to the earnings thereon when distributed as dividends and to his share of the surplus upon dissolution and liquida- tion proceedings independent of the fact that there were two separate incorporations. But, as it seems to me, different considerations and principles apply to this proceeding now before us for review. Our jurisdiction to assess decedent's stock is based solely and exclusively upon the theory that it is held in the Boston and Albany Railroad Company as a New York corporation. The authorities are asserting jurisdiction of and assessing his stock only because it is held in the New York corporation of the Boston and Albany Railroad Company. But we know that said com- pany is also incorporated as a Massachusetts corporation, and presumr ably by virtue of such latter incorporation it has the same powers of owning and managing corporate property which it possesses as a New York corporation. In fact the location of physical property and the exercise of various corporate functions give greater importance to the Massachusetts than to the New York corporation, and the problem is whether for the purpose of levying a tax upon decedent's stock upon the theory that it is held in and under the New York corporation we ought to say that such latter corporation owns and holds all of the property of the consolidated corporation wherever situated, thus entirely ignoring the existence of and the ownership of property by the Massa- chusetts corporation. It needs no particular illumination to demon- strate that if we take such a view it will clearly pave the way to a corresponding view by the authorities and courts of Massachusetts that the corporation in that State owns all of the corporate property wherever situated, and we shall then further and directly be led to the unreasonable and illogical result that one set of property is at the same time solely and exclusively owned by two different corporations, and that a person holding stock should be assessed upon the full value of his stock in each jurisdiction. Whether we regard such a tax as is here being imposed, a recompense to the State for protection afforded during the life of the decedent or as a condition imposed for creating SECT. II. J MATTER OF COOLEY. 289 and allowing certain rights of transfer or of succession to property upon death, we shall have each State exacting full compensation upon one succession and a clear case of double taxation. And if the corporation had been compelled for sufficient reasons to take out incorporation in six or twenty other States each one of them might take the same view and insist upon the same exaction until the value of the property was in whole or large proportion exhausted in paying for the privilege of succession to it. While undoubtedly the legislative authority is potent enough to prescribe and enforce double taxation, it is plain that. measured by ordinary principles of justice, the result suggested would be inequitable and might be seriously burdensome. Double taxation is one which the courts should avoid whenever it is possible within reason to do so. (Matter of James, 144 N. Y. 6. 11.) It is never to be presumed. Sometimes tax laws have that effect. but if they do it is because the legislature has unmistakably so enacted. All presumptions are against such an imposition. (Tennessee v. Whit- worth. 117 TJ. S. 129.) The law of taxation is to be construed strictly against the State in favor of the taxpayer, as represented by the executor of the estate. (Matter of Fayerweather, 143 X. Y. 114.) It seems pretty clear that within the principles of the foregoing and many other cases which might be cited, we ought not to sanction a course which will lead to a tax, measured by the full value of the dece- dent's stock in each State upon the conflicting theories that the corpo- ration in that State owns all of the property of the consolidated company, unless there is something in the statute, or decisions under the statute, which compels us so to do. I do not think there is in either place such compelling authority. No doubt is involved, as it seems to me, about the meaning and ap- plication of the statute. The decedent's stock was "property within the State," which had its situs here as being held in the New York cor- poration, and the transfer of it was taxable here. There can be no dispute about that. The question is simply over the extent and value of his interest as such stockholder, in view of the other incorporation in Massachusetts. I see nothing in the statute which prevents us from paying decent regard to the principles of interstate comity, and from adopting a policy which will enable each State fairly to enforce its own laws without oppression to the subject. This result will be attained by regarding the New York corporation as owning the property situate in New York and the Massachusetts corporation as owning that situate in Massachusetts, and each as owning a share of any property situate out- side of either State or moving to and fro between the two States, and assessing decedent's stock upon that theory. That is the obvious basis for a valuation if we are to leave any room for the Massachusetts corporation and for a taxation by that State similar in principle to our own without double taxation. 1M 290 MATTER OF COOLEY. [dlAP. II. Some illustrations may be referred to which by analogy sustain the general principles involved. Where a tax is levied in this State upon the capital or franchises of a corporation organized as this railroad was, the tax is levied upon an equitable basis. Thus by the provisions of section 6 of chapter 19 of the Laws of 1869, under which the Boston and Albany railroad was organized, the assessment and taxation of its capital stock in this State is to be in the proportion "that the number of miles of its railroad situated in this State bears to the number of miles of its railroad situated in the other State,"' and under section 182 of the General Tax Law of the State of New York the franchise tax of a corporation is based upon the amount of capital within the State. Again, assume that for purposes of dissolution or otherwise, re- ceivers were to be appointed of the Boston and Albany railroad, there can be no doubt that the receivers of it as a New York corporation would be appointed by the courts of that State, and the receivers of it as a Massachusetts corporation would be appointed by the courts of that State, and that the courts would hold that in the discharge of their duties the New York receivers should take possession of and admin- ister upon the property of the New York corporation within the limits of that State, and would not permit the Massachusetts receivers to come within its confines and interfere with such ownership, and the Massachusetts courts would follow a similar policy. Why should not the State authorities for purposes of this species of taxation and valua- tion, involved therein, adopt a similar theory of division of property? We are not apprehensive lest, as suggested, New York corpora- tions may take out incorporation in other States for the purpose of ex- empting transfers of their capital stock from taxation under the principles of this decision. We do not regard our decision as giving encouragement to any such course. It is based upon and limited by the facts as they are here presented, and there is no question whatever but that the Boston and Albany railroad, in good faith and for legitimate reasons, was equally and contemporaneously created both as a New York and a Massachusetts corporation. It can no more be said that being; originally and properly a New York corporation it subsequentlv and incidentally became a Massachusetts one than could be maintained the reverse of such proposition. If in the future a corporation created and organized under the laws of this State, or properly and really to be regarded as a New York corporation, shall see fit either for the pur- pose suggested, or for any other reason subsequently and incidentally and for ancillary reasons, to take out incorporation in another State, a case would arise not falling within this decision. But it is said that this court has already made decisions which pre- vent it from adopting such a construction as I have outlined, and reference is made to Matter of Bronson (150 N. Y. 1) and Matter of Palmer (183 N. Y. 238). SECT.H.] MATTES OF COOLEY. 291 I do not find anything in those decisions which, interpreted as a whole, with reference to the facts there being discussed, conflicts with the views which I have advanced. In the first case the question arose whether a tax might he imposed upon a transfer of a non-resident decedent's residuary estate which " consisted in shares of the capital stuck and in the bonds of corpora- tions incorporated under the laws of this State." So far as the discus- sion relates to the question of taxing the bonds, it is immaterial. It was held that the shares of capital stock were property which was taxa- ble, it being said : " The shareholders are persons who are interested in the operation of the corporate property and franchises, and their shares actually represent undivided interests in the corporate enterprise. The corporation has the legal title to all the properties acquired and appurte- nant, but it holds them for the pecuniary benefit of those persons who hold the capital stock. . . . Each share represents a distinct interest in the whole of the corporate property.'" In other words, Judge Gray, in writing the majority opinion, was discussing the situation of a share- holder in a domestic corporation which, so far as appears, was not incorporated under the laws of another State. Under such circum- stances, of course, the New York corporation would be the owner of all the property there was, and the shareholder's interest in such corpo- ration would represent his interest in all of said property and be fairly and justly taxable upon its full amount and value. No such situation was presented as here arises. There was no second or third corporation under the laws of another State, which corporation might just as fairly be said to lie the owner of all the property as the New York corpora- tion, thus raising the question here presented whether each corporation should be regarded as owning and holding all of the property there was for the purpose of laying the basis for taxation, or whether we should adopt an equitable and reasonable view, giving credit to each corporation for the purpose of taxation of owning some certain portion of the entire propert}'. In the Palmer case again the question arose over taxing shares of stock held by a non-resident decedent in a domestic corporation which was not proved or considered to have been incorporated under the laws of another State. It was insisted that the amount of the tax should be reduced by the proportion of property owned by the corpo- ration and located in other States, and this contention was overruled, and, as it seems to me, for a perfectly good reason upon the facts in that case and which is not applicable to the facts here. As staled, there was a single incorporation under the laws of this State, and that domestic corporation owned all of the property in whatever State situ ated. Its corporate origin was under the laws of this State, and there its corporate existence was centred. It just as fully and completely owned and managed property Bituated in the State of Ohio as if it was situated in the State of New York, and if the property in the foreign 292 MATTER OF COOLEY. [ CHAP. II. State was reduced to money, such money would be turned into its treasury in the State of New York. Under such circumstances there was nothing else that could reasonably be held than that the corpora- tion owned all property wherever situated, and that the sharehold- er's interest in such corporation represented and was based upon such ownership of all the property. There was no double incorporation and no chance for conflict between an incorporation under the laws of this State and a second one existing under the laws of another State, which must either be reconciled by a just regard for the rights of both States and the rights of the incorporation under each, or else double taxation imposed upon a shareholder. It is also argued that the courts of Massachusetts have passed upon the very contention here being made by appellants, and in the case of Moody v. Shaw (173 Mass. 375) have rejected the claim that the valu- ation of stock in this same corporation for the purposes of transfer taxation in Massachusetts should be based upon any apportionment of property between the Massachusetts and New York corporations. The opinion in that case does not seem to warrant any such con- struction. Apparently the only question under discussion was whether the transfer of stock in such corporation was taxable at all in Massa- chusetts, and the question of any apportionment was not passed upon. Such expressions as are found in the opinion touching that point cer- tainly do not indicate to my mind that if involved and passed upon it would have been decided adversely to the views here expressed. Lastly, it is urged that there will be great practical difficulty in making an apportionment of property for the purposes of valuation and taxation upon the lines suggested, and the learned counsel for the re- spondent has suggested many difficulties and absurdities claimed to be incidental to such course of procedure. Most of them certainly will not arise in this case and they probably never will in any other. Of course an appraisal based upon an apportionment of the entire prop- erty of the consolidated company between the New York and Massachu- setts corporations may be made a source of much labor and expense if the parties so desire. Possibly it might be carried to the extent of a de- tailed inventory and valuation of innumerable pieces of property. Upon the other hand, an apportionment based upon trackage or figures drawn from the books or balance sheets of the company may doubtless be easily reached which will be substantially correct, and any inaccuracies of which when reflected in a tax of one per cent upon 426 shares of stock will be inconsequential. The order of the Appellate Division and of the Surrogate's Court of the county of New York should be reversed, with costs, and the pro- ceedings remitted to said Surrogate's Court for a reappraisal of the stock in question in accordance with the views herein expressed. Cullen, Ch. J., Gray, O'Brien, and Edward T. Bartlett, JJ., concur ; Werner and Chase, JJ., dissent. Order reversed, etc. SECT. III.] CALDWELL V. VAN VLISSENGEN. 293 SECTION III. TEMPORARY PRESENCE. CALDWELL v. VAN VLISSENGEN. Chancery. 1851. [Reported 9 Hare, 415.] Turner, V. C. 1 The plaintiffs in these causes are the assignees of a patent granted to James Lowe in the year 1838, for a mode of pro- pelling vessels by means of one or more curved blades set or affixed on a revolving shaft below the water-line of the vessel, and running from stem to stern of the vessel. The defendants in the first two causes are owners of vessels trading between Holland and this country, and the defendant in the third cause was the captain of a vessel en- gaged in the same trade. . . . It was insisted, on the part of the defendants, that there was in each of these cases a sufficient ground for the interference of the court being withheld. In the first place, the ground is thus stated in the affidavit of Izebbe Swart, of Amsterdam. He says, in his affidavit, that he is the master of the ship called the Burgemeester Huidekoper, . . . that the vessel belongs to a company formed in Holland ; . . . that some time before the vessel was built and fitted, the same pro- pelling power with that used for the vessel had been openly used and exercised in Holland ; . . . that no patent has been granted, or, as he is informed and believes, applied for in Holland, for or in respect of such alleged invention. . . . It is to be observed, that in none of these cases is it attempted to be denied, on the part of the defendants, that the screw propellers used in their respective vessels fall within the invention claimed by this patent ; and after anxiously considering the case, I am of opinion that I cannot withhold these injunctions, upon the grounds which are stated. I take the rule to be universal, that foreigners are in all cases sub- ject to the laws of the country in which they may happen to be ; and if in any case, when they are out of their own country, their rights are regulated and governed by their own laws, I take it to be not bv force of those laws themselves, but by the law of the country in which they ma}' be, adopting those laws as part of their own law for the purpose of determining such rights. Mr. Justice Story, in his Treatise on the " Conflict of Laws," addressing himself to this subject (s. 541), says: " In regard to foreigners resident in a country, although some jurists deny the right of a nation generally to legislate over them, it would 1 Part of the opinion U omitted. - Ed. 294 CALDWELL V. VAN VLISSENGEN. [CHAP. II. seem clear, upon general principles of international law, that such a rio-ht does exist, and the extent to which it should be exercised is a matter purely of municipal arrangement and policy. Huberus lays down the doctrine in his second axiom : ' All persons who are found within the limits of a government, whether their residence is perma- nent or temporaiy, are to be deemed subjects thereof Boullenois says, ' That the sovereign has a right to make laws to bind foreigners in relation to their property within his domains, in relation to contracts and acts done therein, and in relation to judicial proceedings if they implead before his tribunals. And further, that he may of strict right make laws for all foreigners who merely pass through his domains, although commonly this authority is exercised only as to matters of police.' Vattel asserts the same general doctrine, and says that for- eigners are subject to the laws of a State while they reside in it." Page 789, 2d edit. Lond. In this country, indeed, the position of for- eigners is not left to rest upon this general law, but is provided for by statute ; for, by the 32 Hen. VIII., c. 16, s. 9, it is enacted, kt that every alien and stranger born out of the King's obeisance, not being denizen, which now or hereafter shall come in or to this realm or elsewhere within the King's dominions, shall, after the 1st of September next coming, be bounden by and unto the laws and statutes of this realm, and to all and singular the contents of the same.'' Natural justice, indeed, seems to require that this should be the case ; when countries extend to foreigners the protection of their laws, they may well require obedience to those laws as the price of that protection. These de- fendants, therefore, whilst in this country, must, I think, be subject to its laws. . . . Undoubtedly this grant gives to the grantee a right of action against persons who infringe upon the sole and exclusive right purported to be granted by it. Foreigners coming into this country are, as I appre- hend, subject to actions for injuries done by them whilst here to the subjects of the crown. Why, then, are they not to be subject to actions for the injury done by their infringing upon the sole and ex- clusive right, which I have shown to be granted in conformity with the laws and constitution of this country? And if they are sub- ject to such actions, why is not the power of this court, which is founded upon the insufficiency of the legal remedy, to be applied against them as well as against the subjects of the crown. It was said that the prohibitory words of the patent were addressed only to the subjects of the crown ; but these prohibitory words are in aid of the grant and not in derogation of it; and they were probably introduced at a time when the prohibition of the crown could be enforced person- ally against parties who ventured to disobey it. The language of this part of the patent, therefore, does not appear to me to alter the case. In the course of the argument upon these motions, I put the ques- tion whether, in the case of a railway engine patented in England, and not in Scotland, the engine, if made in Scotland, could be permitted SECT. III.] CALDWELL V. VAN VLISSENGEN. 295 to run into England ; and I might have added, whether, if the inven- tion we are now considering was patented in England and Scotland, and not in Ireland, steamboats propelled by means of it would be per- mitted to run from Dublin into Holyhead, Bristol, and Glasgow. The answer which I received to this question was, that in the case of patents there was a difference between Scotland and foreign countries ; that a prior user in Scotland would, although a prior user in foreign countries would not, invalidate an English patent ; but this answer does not ap- pear to me to meet the question. What previous user will invalidate a patent, and what user, if any, can be permitted in contravention of the patent right, are different questions depending on wholly different considerations ; the one upon the extent of previous knowledge, the other upon the effect of the grant. . . . In the argument on the part of the defendants, much was said on the hardship of this court's interfering against them, and upon the inconveniences which would result from it, and some reference was made to the policy of this country ; but it must be remembered that British ships certainly cannot use this invention without the license of the patentees, and the burthens incident to such license ; and foreign- ers cannot justly complain that their ships are not permitted to enjoy, without license and without payment, advantages which the ships of this country cannot enjoy otherwise than under license and upon pay- ment. It must be remembered that foreigners may take out patents in this country, and thus secure to themselves the exclusive use of their inventions within her Majesty's dominions ; and that if the}' neglect to do so, they, to this extent, withhold their invention from the subjects of this country. It is to be observed also, that the enforcement of the exclusive right under a patent does not take away from foreigners any privilege which they ever enjoyed in this country ; for, if the invention was used by them in this country before the granting of the patent, the patent, I apprehend, would be invalid. One principal ground of inconvenience suggested was that if foreign ships were restrained from using this invention in these dominions, English ships might equally be restrained from using it in foreign do- minions ; but I think this argument resolves itself into a question of national policy, and it is for the legislature, and not for the courts, to deal with that question ; my duty is, to administer the law and not to make it. 1 . . . 1 Ace. Morin v. Goupillat (Cassation, France), Journal du Palais, 1855, 2, 503 ; Teschen v. Molir (Rouen, 1874), Journal du Palais, 1874, 1165. — Ed. 296 BROWN V. DUCHESNE. [CHAP. IL BROWN v. DUCHESNE. Supreme Court of the United States. 1857. [Reported 19 Howard, 183.] Taney, C. J. This case comes before the court upon a writ of error to the Circuit Court of the United States for the district of Massa- chusetts. The plaintiff in error, who was also plaintiff in the court below, brought this action against the defendant for the infringement of a patent which the plaintiff had obtained for a new and useful improve- ment in constructing the gaff of sailing vessels. The declaration is in the usual form, and alleges that the defendant used this improvement at Boston without his consent. The defendant pleaded that the im- provement in question was used by him only in the gaffs of a French schooner, called the '• Alc} T on," of which schooner he was master; that he (the defendant) was a subject of the Empire of France ; that the vessel was built in France, and owned and manned by French sub- jects ; and, at the time of the alleged infringement, was upon a lawful voyage, under the flag of France, from St. Peters, in the island of Miquelon, one of the colonies of France, to Boston, and thence back to St. Peters, which voyage was not ended at the date of the alleged infringement ; and that the gaffs he used were placed on the schooner at or near the time she was launched by the builder in order to fit her for sea. There is also a second plea containing the same allegations, with the additional averment that the improvement in question had been in common use in French merchant vessels for more than twenty years before the " Akryon" was built, and was the common and well-known property of every French subject long before the plaintiff obtained his patent. The plaintiff demurred generally to each of these pleas, and the de- fendant joined in demurrer; and the judgment of the Circuit Court being in favor of the defendant, the plaintiff thereupon brought this writ of error. The plaintiff, by his demurrer, admits that the "Alcj'on " was a foreign vessel, lawfully in a port of the United States for the purposes of com- merce, and that the improvement, in question was placed on her in a foreign port to fit her for sea, and was authorized by the laws of the country to which she belonged. The question, therefore, presented by the first plea is simply this : whether any improvement in the construc- tion or equipment of a foreign vessel, for which a patent has been ob- tained in the United States, can be used by such vessel within the jurisdiction of the United States, while she is temporarily there for the purposes of commerce, without the consent of the patentee? SECT. III.] BROWN V. DUCHESNE. 297 This question depends on the construction of the patent laws. For undoubtedly every person who is found within the limits of a govern- ment, whether for teinporar}* purposes or as a resident, is bound by its laws. The doctrine upon this subject is correctly stated by Mr. Justice Story, in his " Commentaries on the Conflict of Laws" (chap. 14, sec. 541), and the writers on public law to whom he refers. A difficulty may sometimes arise in determining whether a particular law applies to the citizen of a foreign country, and intended to subject him to its provisions. But if the law applies to him, and embraces his case, it is unquestionably binding upon him when he is within the jurisdiction of the United States. The general words used in the clause of the patent laws granting the exclusive right to the patentee to use the improvement, taken by them- selves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode' of expounding a statute has never been adopted by any enlightened tri- bunal — because it is evident that in many cases it would defeat the object which the legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and polic}' of the law, as indicated by its various pro- visions, and give to it such a construction as will earn' into execution the will of the legislature, as thus ascertained, according to its true intent and meaning. Neither will the court, in expounding a statute, give to it a construc- tion which would in any degree disarm the government of a power which has been confided to it to be used for the general good — or which would enable individuals to embarrass it, in the discharge of the high duties it owes to the community — unless plain and express words indicated that such was the intention of the legislature. The patent laws are authorized by that article in the Constitution which provides that Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discov- eries. The power thus granted is domestic in its character, and neces- sarily confined within the limits of the United States. It confers no power on Congress to regulate commerce, or the vehicles of commerce which belong to a foreign nation, and occasionally visit our ports in their commercial pursuits. That power and the treaty-making power of the general government are separate and distinct powers from the one of which we are now speaking, and are granted by separate and different clauses, and are in no degree connected with it. And when Congress are legislating to protect authors and inventors, their atten- tion is necessarily attracted to the authority under which they are act- ing, and it ought not lightly to be presumed that they intended to go beyond it, and exercise another and distinct power conferred on them for a different purpose. 298 BROWN V. DUCHESNE. [CHAP. II. Nor is there anything in the patent laws that should lead to a differ- ent conclusion. They are all manifestly intended to carry into exe- cution this particular power. They secure to the inventor a just remuneration from those who derive a profit or advantage, within the United States, from his genius and mental labors. But the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions ; and this court have always held that an inventor has no right of property in bis invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress ; and that his rights are to be regulated and measured by these laws, and cannot go beyond them. But these acts of Congress do not, and were not intended to, operate beyond the limits of the United States ; and as the patentee's right of property and exclusive use is derived from them, they cannot extend beyond the limits to which the law itself is confined. And the use of it outside of the jurisdiction of the United States is not an infringe- ment of his rights, and he has no claim to airy compensation for the profit or advantage the party may derive from it. The chief and almost only advantage which the defendant derived from the use of this improvement was on the high seas, and in other places out of the jurisdiction of the United States. The plea avers that it was placed on her to fit her for sea. If it had been manufac- tured on her deck while she was lying in the port of Boston, or if the captain had sold it there, he would undoubtedly have trespassed upon the rights of the plaintiff, and would have been justby answerable for the profit and advantage he thereby obtained. For, by coming in com- petition with the plaintiff, where the plaintiff was entitled to the ex- clusive use, he thereby diminished the value of his property. Justice, therefore, as well as the act of Congress, would require that he should compensate the patentee for the injury he sustained, and the benefit and advantage which he (the defendant) derived from the invention. But, so far as the mere use is concerned, the vessel could hardly be said to use it while she was at anchor in the port, or lay at the wharf. It was certainly of no value to her while she was in the harbor ; and the only use made of it, which can be supposed to interfere with the rights of the plaintiff, was in navigating the vessel into and out of the harbor, when she arrived or was about to depart, and while she was within the jurisdiction of the United States. Now, it is obvious that the plaintiff sustained no damage, and the defendant derived no mate= rial advantage, from the use of an improvement of this kind b}' a for- eign vessel in a single voyage to the United States, or from occasional voyages in the ordinary pursuits of commerce ; or if any damage is sustained on the one side, or any profit or advantage gained on the other, it is so minute that it is incapable of any appreciable value. But it seems to be supposed that this user of the improvement was, by legal intendment, a trespass upon the rights of the plaintiff ; and SECT. III.] BROWN V. DUCHESNE. 299 that although no real damage was sustained by the plaintiff, and no profit or advantage gained by the defendant, the law presumes a dam- age, and that the action may be maintained on that ground. In other words, that there is a technical damage, in the eye of the law, although none has really been sustained. This view of the subject, however, presupposes that the patent laws embrace improvements on foreign ships, lawfully made in their own country, which have been patented here. But that is the question in controversy. And the court is of opinion that cases of that kind were not in the contemplation of Congress in enacting the patent laws, and cannot, upon any sound construction, be regarded as embraced in them. For such a construction would be inconsistent with the prin- ciples that lie at the foundation of these laws ; and instead of confer- ring legal rights on the inventor, in order to do equal justice between him and those who profit by his invention, they would confer a power to exact damages where no real damage had been sustained, and would moreover seriously embarrass the commerce of the country with foreign nations. We think these laws ought to be construed in the spirit in which they were made — that is, as founded in justice — and should not be strained by technical constructions to reach cases which Con- gress evidently could not have contemplated, without departing from the principle upon which they were legislating, and going far beyond the object they intended to accomplish. The construction claimed by the plaintiff would confer on patentees not only rights of property, but also political power, and enable them to embarrass the treaty-making power in its negotiations with foreign nations, and also to interfere with the legislation of Congress when ex- ercising its constitutional power to regulate commerce. And if a treaty should be negotiated with a foreign nation, by which the vessels of each party were to be freely admitted into the ports of the other, upon equal terms with its own, upon the payment of the ordinary port charges, and the foreign government faithfully carried it into execution, yet the government of the United States would find itself unable to fulfil its obligations if the foreign ship had about her, in her construction or equipment, anything for which a patent had been granted. And after paying the port and other charges to which she was subject by the treaty, the master would be met with a further demand, the amount of which was not even regulated by law, but depended upon the will of a private individual. And it will be remembered that the demand, if well founded in the patent laws, could not be controlled or put aside by the treaty. For, by the laws of the United Stales, the rights of a party under a patent are his private property ; and by the Constitution of the United States, private property cannot be taken for public use without just compensa- tion. And in the case I have stated, the government would be unable to carry into effect its treaty stipulations without the consent of the patentee, unless it resorted to its right of eminent domain, and went 300 BROWN V. DUCHESNE. [CHAP. II. through the tedious and expensive process of condemning so much of the right of property of the patentee as related to foreign vessels, and paying him such a compensation therefor as should be awarded to him by the proper tribunal. The same difficulty would exist in executing a law of Congress in relation to foreign ships and vessels trading to this country. And it is impossible to suppose that Congress in passing these laws could have intended to confer on the patentee a right of private property, which would in effect enable him to exercise political power, and which the government would be obliged to regain by pur- chase, or by the power of its eminent domain, before it could fully and freely exercise the great power of regulating commerce, in which the whole nation has an interest. The patent laws were passed to accom- plish a different purpose, and with an eye to a different object ; and the right to interfere in foreign intercourse, or with foreign ships visit- ing our ports, was evidently not in the mind of the legislature, nor in- tended to be granted to the patentee. Congress may unquestionably, under its power to regulate commerce, prohibit any foreign ship from entering our ports, which, in its con- struction or equipment, uses any improvement patented in this country, or may prescribe the terms and regulations upon which such vessel shall be allowed to enter. Yet it may perhaps be doubted whether Congress could by law confer on an individual, or individuals, a right which would in any degree impair the constitutional powers of the leg- islative or executive departments of the government, or which might put it in their power to embarrass our commerce and intercourse with foreign nations, or endanger our amicable relations. But however that may be, we are satisfied that no sound rule of interpretation would justify the court in giving to the general words used in the patent laws the extended construction claimed by the plaintiff, in a case like this, where public rights and the interests of the whole community are con- cerned. The case of Caldwell v. Vlissengen (9 Hare, 416, 9 Eng. L. & Eq. Rep. 51), and the statute passed by the British Parliament in con- sequence of that decision, have been referred to and relied on in the argument. The reasoning of the Vice-Chancellor is certainly entitled to much respect, and it is not for this court to question the correctness of the decision, or the construction given to the statute of Henry VIII. But we must interpret our patent laws with reference to our own Constitution and laws and judicial decisions. And the court are of opinion that the rights of property and exclusive use granted to a patentee does not extend to a foreign vessel lawfully entering one of our ports ; and that the use of such improvement, in the construction, fitting out, or equipment of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of an American patentee, provided it was placed upon her in a foreign port, and authorized by the laws of the country to which she belongs. SECT. III.] BROWN V. DUCHESNE. 301 In this view of the subject, it is unnecessary to say anything in re- lation to the second plea of the defendant, since the matters relied on in the first are sufficient to bar the plaintiff of his action, without the aid of the additional averments contained in the second. The judgment of the Circuit Court must therefore be affirmed. CHAPTER III. JURISDICTION OF COURTS. SECTION I. JURISDICTION IN" REM. THE BELGENLAND. Supreme Court of the United States. 1885. [Reported 114 United States, 355.] Bradley, J. 1 This case grew out of a collision which took place on the high seas between the Norwegian barque " Luna " and the Belgian steamship "Belgenland," by which the former was run down and sunk. Part of the crew of the "Luna," including the master, were rescued by the " Belgenland " and brought to Philadelphia. The master immedi- ately libelled the steamship on behalf of the owners of the " Luna" and her caro-o, and her surviving crew, in a cause civil and maritime. . . . The District Court decided in favor of the libellant, and rendered a decree for the various parties interested to the aggregate amount of $50,278.23. An appeal was taken to the Circuit Court. . . . A decree was thereupon entered, affirming the decree of the District Court. ... A reargument was had on the question of jurisdiction, and the court held and decided that the Admiralty Courts of the United States have jurisdiction of collisions occurring on the high seas between vessels owned by foreigners of different nationalities ; and overruled the plea to the jurisdiction. 9 Fed. Rep. 576. The case was brought before this court on appeal from the decree of the Circuit Court. See also 108 U. S. 153. The first question to be considered is that of the jurisdiction of the District Court to hear and determine the cause. It is unnecessary here, and would be out of place, to examine the question which has so often engaged the attention of the common law courts, whether, and in what cases, the courts of one country should take cognizance of controversies arising in a foreign country, or in places outside of the jurisdiction of any country. It is very fully dis- 1 Only so much of the opinion as discusses the question of jurisdiction is given. — Ed. SECT - *•] THE BELGENLAND. 303 cussed in Mostyn v. Fabrigas, Cowp. 161, and the notes thereto in 1 Smith's Leading Cases, 340 ; and an instructive analysis of the law will be found in the elaborate arguments of counsel in the case of the San Francisco Vigilant Committee, Malonv v. Dows, 8 Abbott Pr 316, argued before Judge Daly in New York, 1859. We shall content ourselves with inquiring what rule is followed bv Courts of Admiralty m dealing with maritime causes arising between'foreigners and others on the high seas. This question is not a new one in these courts. Sir William Scott had occasion to pass upon it in 1799. An American ship was taken by the French on a voyage from Philadelphia to London, and afterwards rescued by her crew, carried to England, and libelled for salvage ; and the court entertained jurisdiction. The crew, however, though eno- a o- e d in the American ship, were British born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however made the following remarks : '-' But it is asked, if they were American seamen would this court hold plea of their demands? It may be time enough to answer this question whenever the fact occurs. In the mean- time, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case • or conversely, if American courts were to hold pleas of this nature re- specting the merits of British seamen on such occasions. For salvage is a question of jus gentium, and materially different from the question of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained by its own particular rules. There might be good reason, therefore, for this court to decline to interfere in such cases, and to remit them to their own do- mestic forum ; but this is a general claim, upon the general ground of quantum meruit, to be governed by a sound discretion, acting on «r en - eral principles ; and I can see no reason why one country should be afraid to trust to the equity of the courts of another on such a question of such a nature, so to be determined." The Two Friends, 1 Ch Rob' 271, 278. ' The law has become settled very much in accord with these views That was a case of salvage ; but the same principles would seem to ap- ply to the case of destroying or injuring a ship, as to that of saving it Both, when acted on the high seas, between persons of different nation- alities, come within the domain of the general law of nations, or cow- munis juris, and are prima facie proper subjects of inquiry in any Court of Admiralty which first obtains jurisdiction of the rescued or offending ship at the solicitation in justice of the meritorious, or injured parties. J ' The same question of jurisdiction arose in another salvage case which came before this court in 1804, Mason v. The Blaireau, 2 Cranch 24u. There a French ship was saved by a British ship, and brought into a port of the United States ; and the question of jurisdiction was raised by Mr. Martin, of Maryland, who, however, did not press the 304 THE BELGENLAND. [CHAP. III. point, and referred to the observations of Sir William Scott in The Two Friends. Chief Justice Marshall, speaking for the court, disposed of the question as follows: "A doubt has been suggested," said he, " respecting the jurisdiction of the court, and upon a reference to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy, this court ought not to take cognizance of a case entirely be- tween foreigners, than from any positive incapacity to do so. On Weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court, that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it." In that case, the objection had not been taken in the first instance, as it was in the present. But we do not see how that circumstance can affect the jurisdiction of the court, however much it may influence its discretion in taking jurisdiction. For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum ; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts ; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category ; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction ; not on the ground that it has not jurisdiction, but that, from motives of convenience or interna- tional comity, it will use its discretion whether to exercise jurisdiction or not ; and where the voyage is ended, or the seamen have been dis- missed or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul. This branch of the subject will be found discussed in the following cases : The Catherina, 1 Pet. Adm. 104 ; The Forsoket, 1 Pet. Adm. 197; The St. Oloff, 2 Pet. Adm. 428 The Golubchick, 1 W. Rob. 143; The Nina, L. R. 2 Adm. and Eccl. 44 s. c. on appeal, L. R. 2 Priv. Co. 38; The Leon XIII., 8 Prob. Div. 121 The Havana, 1 Sprague, 402 ; The Becherdass Ambaidass, 1 Lowell, 569 ; The Pawashick, 2 Lowell, 142. Of course, if any treat}- stipulations exist between the United States and the country to which a foreign ship belongs, with regard to the right of the consul of that country to adjudge controversies arising be- tween the master and crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations should be fairly and faithfully observed. The Elwin Kreplin, 9 Blatchford, 438, revers- ing s. c. 4 Ben. 413 ; see s. c. on application for mandamus, Ex parte Newman, 14 Wall. 152. Many public engagements of this kind have been entered into between our government and foreigh States. See Treaties and Conventions, Rev. ed., 1873. Index, 1238. In the absence of such treat}- stipulations, however, the case of for- SECT, I.] THE BELGBNLAND. 305 eign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs ; framed also with a view to secure, iu accordance with those laws, the rights and interests of the ship-owners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the mas- ter of their ship for ill-treatment. On general principles of comity, Admiralty Courts of other countries will not interfere between the par- ties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction. Not alone, however, in cases of complaints made by foreign seamen, but in other cases also, where the subjects of a particular nation invoke the aid of our tribunals to adjudicate between them and their fellow subjects, as to matters of contract or tort solely affecting themselves and deter- minable by their own laws, such tribunals will exercise their discretion whether to take cognizance of such matters or not. A salvage case of this kind came before the United States District Court of New York in 1848. The master and crew of a British ship found another British ship near the English coast apparently abandoned (though another vessel was in sight), and took off a portion of her cargo, brought it to New York, and libelled it for salvage. The British consul and some owners of the cargo intervened and protested against the jurisdiction, and Judge Betts discharged the case, delivered the property to the owners upon security given, and left the salvors to pursue their remedy in the Eng- lish courts. One Hundred and Ninety-four Shawls, 1 Abbott Adm. 317. So in a question of ownership of a foreign vessel, agitated between the subjects of the nation to which the vessel belonged, the English Admiralty, upon objection being made to its jurisdiction, refused to interfere, the consul of such foreign nation having declined to give his consent to the proceedings. The Agincourt, 2 Prob. Div. 239. But in another case, where there had been an adjudication of the ownership under a mortgage in the foreign country, and the consul of that country requested the English court to take jurisdiction of the case upon a libel filed by the mortgagee, whom the owners had dispossessed, the court took jurisdiction accordingly. The Evangelistria, 2 Prob. Div. 241, note. But, although the courts will use a discretion about assuming juris- diction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, that is, where they arise under the common law of nations, special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdic- tion of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute ; the only question will be, whether it is expedient to exercise it. Sec 2 Parsons Ship, and Adm. 226, and cases 2(1 306 THE BELGENLAND. [CHAP. III. cited in notes. In the case of The Jerusalem, 2 Gall. 191, decided by Mr. Justice Story, jurisdiction was exercised in the case of a bottomry bond, although the contract was made between subjects of the Sublime Porte, and it did not appear that it was intended that the vessel should come to the United States. In this case Justice Story examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an Admiralty Court can take jurisdiction on the principle of the civil law, that in proceedings in rem the proper forum is the locus rei sitae. He added: "With reference, therefore, to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy." That, as we have seen, was a case of bottomry, and Justice Story, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said : "In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in almost all civilized countries these are in general substantially governed by the same rules." Justice Story's decision in this case was referred to by Dr. Lushing- ton with strong approbation in the case of The Golubchick, 1 W. Rob. 143, decided in 1840, and was adopted as authority for his taking juris- diction in that case. In 1839, a case of collision on the high seas between two foreign ships of different countries (the very case now under consideration) came be- fore the English Admiralty. The Johann Friederich, 1 W. Rob. 35. A Danish ship was sunk by a Bremen ship, and on the latter being libelled, the respondents entered a protest against the jurisdiction of the court. But jurisdiction was retained by Dr. Lushington, who, amongst other things, remarked: "An alien friend is entitled to sue [in our courts] on the same footing as a British born subject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus comitatus, no objection could have been taken." Refer- ence being made to the observations of Lord Stowell in cases of sea- men's wages, the judge said: "All questions of collision are questions communis j Wis ; but in case of mariners' wages, whoever engages vol- untarily to serve on board a foreign ship, necessarily undertakes to be bound by the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most im- portant distinctions, therefore, respecting cases where both parties are foreigners is, whether the case be communis juris or not. ... If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost, for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress." In the subsequent case of The Griefswald, 1 Swabey, 430, decided by the same judge in 1859, which arose out of a collision between a SECT. I.] THE BELGENLAXD. 307 British barque and a Persian ship in the Dardanelles, Dr. Lushington said: "In cases of collision, it has been the practice of this country, and, so far as I know, of the European States and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable." The subject has frequently been before our own Admiralty Courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that the} - will exercise it unless special circumstances exist to show that justice would be better subserved by declining it. It was exercised in two cases of collision coming before Mr. Justice Blatchford, while district judge of the Southern District of New York, The Jupiter, 1 Ben. 536, and The Steamship Russia, 3 Ben. 471. In the former case the law was taken very much for granted ; in the latter it was tersely and accurately ex- pounded, with a reference to the principal authorities. Other cases might be referred to, but it is unnecessary to cite them. The general doctrine on the subject is recognized in the case of The Maggie Ham- mond, 9 Wall. 435, 457, and is accurately stated by Chief Justice Taney in his dissenting opinion in Taylor v. Carry], 20 How. 583, 611. As the assumption of jurisdiction in such cases depends so largely on the discretion of the court of first instance, it is necessary to inquire how far an appellate court should undertake to review its action. We are not without authority of a very high character on this point. In a quite recent case in England, that of The Leon XIII., 8 Prob. Div. 121, the subject was discussed in the Court of Appeal. That was the case of a Spanish vessel libelled for the wages of certain British seamen who had shipped on board of her, and the Spanish consul at Liverpool pro- tested against the jurisdiction of the Admiralty Court on the ground that the shipping articles were a Spanish contract, to be governed by Spanish law, and any controvers} - arising thereon could only be settled before a Spanish court, or consul. Sir Robert Phillimore held that the seamen were to be regarded for that case as Spanish subjects, and. under the circumstances, he considered the protest a proper one and dismissed the suit. The Court of Appeal held that the judge below was right in regarding the libellants as Spanish subjects; and on the ques- tion of reviewing his exercise of discretion in refusing to take jurisdiction of the case, Brett, M. R., said : "It is then said that the learned judge has exercised his discretion wrongly. What then is the ride as regards this point in the Courl of Appeal ? The plaintiffs must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutely differently from the view which the Court of Appeal holds, that they are justified in saying lie lias exercised it wrongly. I cannot see that any wrong principle has been acted on by the learned judge, or anything done in the exercise of his discretion so unjust or unfair as to entitle us to overrule; his discretion." 308 ARNDT V. GRIGGS. [CHAP. III. This seems to us to be a very sound view of the subject ; and acting on this principle, we certainly see nothing in the course taken by the District Court in assuming jurisdiction of the present case, which calls for animadversion. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. Neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and can generally be more impartially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to which the litigants belong. As Judge Dead}* very justly said, in a case before him in the district of Oregon : -' The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found." Bernhard v. Greene, 3 Sawyer, 230, 235. ARNDT v. GRIGGS. Supreme Court of the United States. 1890. [Reported 134 United States, 316.] Brewer, J. The statutes of Nebraska contain these sections : Sec. 57, chap. 73, Compiled Statutes 1885, p. 483 : " An action maybe brought and prosecuted to final decree, judgment, or order, by any person or per- sons, whether in actual possession or not, claiming title to real estate, against any person or persons, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate." Sec. 58: " All such pleadings and proofs and subsequent proceedings shall be had in such action now pending or hereafter brought, as may be necessary to full} 7 settle or determine the question of title between the parties to said real estate, and to decree the title to the same, or an}- part thereof, to the party entitled thereto ; and the court may issue the appropriate order to carry such decree, judgment, or order into effect." Sec. 77, Code of Civil Procedure, Compiled Statutes 1885, p. 637 : " Service may be made by publication in either of the following cases: "Fourth. In actions which relate to, or the subject of which is, real or personal property in this State, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the State or a foreign corporation." Sec. 78 of the Code: "Before service can be made by publication. SECT. I.] A.RNDT V. GKIGGS. 309 an affidavit must be filed that service of a summons cannot be made within this State, on the defendant or defendants, to be served by pub- lication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed the party may proceed to make service by publication." Sec. 82 of the Code : " A party against whom a judgment or decree has been rendered without other service than by publication in a newspaper, may, at any time within five years aftei the date of the judgment or order, have the same opened and be let in to defend ; ... but the title to any property, the subject of the judg- ment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title to any property sold before judgment under an attachment." Sec. 429 6, of the Code : " When any judgment or decree shall be rendered for a conveyance, release, or acquittance, in any court of this State, and the party or parties against whom the judgment or decree shall be rendered do not comply therewith within the time mentioned in said judgment or decree, such judgment or decree shall have the same operation and effect, and be as available, as if the conveyance, release, or acquittance had been executed conformable to such judgment or decree." Under these sections, in March, 1882, Charles L. Flint filed his peti- tion in the proper court against Michael Hurley and another, alleging that he was the owner and in possession of the tracts of land in con- troversy in this suit ; that he held title thereto by virtue of certain tax deeds, which were described ; that the defendants claimed to have some title, estate, interest in, or claim upon the lauds by patent from the United States, or deed from the patentee, but that whatever title, estate, or claim they had, or pretended to have, was divested by the said tax deeds, and was unjust, inequitable, and a cloud upon plain- tiff's title ; and that this suit was brought for the purpose of quieting his title. The defendants were brought in by publication, a decree was entered in favor of Flint quieting his title, and it is conceded that all the proceedings were in full conformity with the statutory provisions above quoted. The present suit is one in ejectment, between grantees of the respec- tive parties to the foregoing proceedings to quiet title ; and the ques- tion before us, arising upon a certificate of division of opinion between the trial judges, is whether the decree in such proceedings to quiet title, rendered in accordance with the provisions of the Nebraska statute, upon service duly authorized by them, was valid and operated to quiet the title in the plaintiff therein. In other words, has a State the power to provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant, being a non-resident, is brought into court only by publication? The Supreme Court of Nebraska has answered this question in the affirmative. Watson v. Ulbrich, 18 Neb. 189 — in which the court says: "The principal question to be determined is whether or not the decree in 310 AENDT V. GRIGGS. [C HAP - IIL favor of Gray, rendered upon constructive service, is valid until set aside. No objection is made to the service, or any proceedings con- nected with it. The real estate in controversy was within the jurisdic- tion of the District Court, and that court had authority, in a proper case, to render the decree confirming the title of Gray. In Castrique v. Iinrie, L. R. 4 H. L. 414, 429, Mr. Justice Blackburn says: 'We think the inquiry is, first, whether the subject-matter was so situated as to be within the lawful control of the State under the authority of which the court sits ; and, secondly, whether the sovereign authority of that State has conferred on the court jurisdiction to decide as to the disposition of the thing, and the court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world.' The court, therefore, in this case, having authority to render the decree, and jurisdiction of the subject-matter, its decree is conclusive upon the property until vacated under the statutes or set aside." Section 57, enlarging as it does the class of cases in which relief was formerly afforded by a court of equity in quieting the title to real property, has been sustained by this court, and held applicable to suits in the Federal court. Holland v. Challen, 110 U. S. 15. But it is ear- nestly contended that no decree in such a case, rendered on service by publication only, is valid or can be recognized in the Federal courts. And Hart v. Sansom, 110 TJ. S. 151, is relied on as authority for this proposition. The propositions are, that an action to quiet title is a suit in equity ; that equity acts upon the person ; and that the person is not brought into court by service by publication alone. While these propositions are doubtless correct as statements of the general rules respecting bills to quiet title, and proceedings in courts of equity, they are not applicable or controlling here. The question is not what a court of equity, by virtue of its general powers and in the absence of a statute, might do, but it is, what jurisdiction has a State over titles to real estate within its limits, and what jurisdiction may it give by statute to its own courts, to determine the validity and extent of the claims of non-residents to such real estate? If a State has no power to bring a non-resident into its courts for any purposes by pub- lication, it is impotent to perfect the titles of real estate within its limits held by its own citizens ; and a cloud cast upon such title by a claim of a non-resident will remain for all time a cloud, unless such non-resident shall voluntarily come into its courts for the purpose of having it adju- dicated. But no such imperfections attend the sovereignty of the State. It has control over property within its limits ; and the condition of ownership of real estate therein, whether the owner be stranger or citi- zen, is subjection to its rules concerning the holding, the transfer, lia- bility to obligations, private or public, and the modes of establishing title's thereto. It cannot bring the person of a non-resident within its limits — its process goes not out beyond its borders — but it may deter- mine the extent of his title to real estate within its limits ; and for the SECT. I.] ARNDT V. GKIGGS. 311 purpose of such determination may provide any reasonable methods of imparting notice. The well-being of every community requires that the title of real estate therein shall be secure, and that there be convenient and certain methods of determining any unsettled questions respecting it. The duty of accomplishing this is local in its nature ; it is not a matter of national concern or vested in the general government ; it remains with the State ; and as this duty is one of the State, the manner of discharg- ing it must be determined by the State, and no proceeding w r hich it provides can be declared invalid, unless in conflict with some special inhibitions of the Constitution, or against natural justice. So it has been held repeatedly that the procedure established lry the State, in this respect, is binding upon the Federal courts. In United States v. Fox, 94 U. S. 315, 320, it was said : " The power of the State to regu- late the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners is undoubted. It is an established principle of law, everywhere recog- nized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated." See also McCormick v. Sullivant, 10 Wheat. 192, 202 ; Beauregard v. New Orleans, 18 How. 497; Suydam v. Wil- liamson, 24 How. 427 ; Christian Union v. Yount, 101 U. S. 352 ; Lathrop v. Bank, 8 Dana, 114. Passing to an examination of the decisions on the precise question it may safely be affirmed that the general, if not the uniform, ruling of State courts has been in favor of the power of the State to thus quiet the title to real estate within its limits. In addition to the case from Nebraska, heretofore cited, and which only followed prior rulings in that State, — Scudder v. Sargent, 15 Neb. 102; Keene v. Sallen- bach, 15 Neb. 200 — reference may be had to a few cases. In Cloyd v. Trotter, 118 111. 391, the Supreme Court of Illinois held that under the statutes of that State the court could acquire jurisdiction to quiet title by constructive service against non-resident defendants. A similar ruling as to jurisdiction acquired in a suit to set aside a con- veyance as fraudulent as to creditors was affirmed in Adams y. Cowles, 95 Mo. 501. In Wunstel v. Landry, 39 La. Ann. 312, it was held that a non-resident party could be brought into an action of partition by constructive service. In Essig v. Lower, 21 Northeastern Rep. 1000, the Supreme Court of Indiana thus expressed its views on the question : " It is also argued that the decree in the action to quiet title, set forth in the special finding, is in personam and not in rem, and that the court had no power to render such decree on publication. While it may be true that such decree is not in rem, strictly speaking, yet it must be conceded that it fixed and settled the title to the land then in controversy, and to thai extenl partakes of the nature ofajudg ment in rem. But we do not deem it necessary to a decision of this case 312 ARNDT V. GRIGGS. [CHAP. III. to determine whether the decree is in personam ovin rem. The action was to quiet the title to the land then involved, and to remove there- from certain apparent liens. Section 318, Rev. Stat. 1881, expressly authorizes the rendition of such a decree on publication." This was since the decision in Hart v. Sansom, as was also the case of Dillen v. Heller, 39 Kansas, 599, in which Mr. Justice Valentine, for the court, savs : ' ' For the present we shall assume that the statutes authorizing service of summons by publication were strictly complied with in the present case, and then the only question to be considered is whether the statutes themselves are valid. Or, in other words, we think the question is this : Has the State any power, through the legislature and the courts, or by any other means or instrumentalities, to dispose of or control property in the State belonging to non-resident owners out of the State, where such non-resident owners will not voluntarily sur- render jurisdiction of their persons to the State or to the courts of the State, and where the most urgent public policy and justice require that the State and its courts should assume jurisdiction over such property? Power of this kind has already been exercised, not only in Kansas, but in all the other States. Lands of non-resident owners, as well as of resident owners, are taxed and sold for taxes ; and the owners thereby may totally be deprived of such lands, although no notice is ever given to such owners, except a notice by publication, or some other notice of no greater value, force, or efficacy. Beebe v. Doster, 36 Kansas, 666, 675° 677 ; s. c. 14 Pac. Rep. 150. Mortgage liens, mechanics' liens, material-men's liens, and other liens are foreclosed against non-resi- dent defendants upon service by publication only. Lands of non-resi- dent defendants are attached and sold to pay their debts ; and, indeed, almost any kind of action may be instituted and maintained against non-residents to the extent of any interest in property they may have in Kansas, and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication. Gillespie v. Thomas, 23 Kansas, 138; Walkenhorst v. Lewis, 24 Kansas, 420; Rowe v. Palmer, 29 Kansas, 337 ; Venable v. Dutch, 37 Kansas, 515, 519. All the States by proper statutes authorize actions against non- residents, and service of summons therein by publication only, or ser- vice in some other form no better ; and, in the nature of things, such must be done in every jurisdiction, in order that full and complete justice may be done where some of the parties are non-residents. We think a sovereign State has the power to do just such a thing. All things within the territorial boundaries of a sovereignty are within its jurisdiction; and, generally, within its own boundaries a sovereignty is supreme. Kansas is supreme, except so far as its power and author- itv are limited by the Constitution and laws of the United States ; and within the Constitution and laws of the United States the courts of Kansas may have all the jurisdiction over all persons and things within the State which the constitution and laws of Kansas may give to them ; and the mode of obtaining this jurisdiction may be prescribed wholly, SECT. I.] ARNDT V. GRIGGS. 313 entirely, and exclusively by the statutes of Kansas. To obtain juris- diction of everything within the State of Kansas, the statutes of Kan- sas may make service by publication as good as any other kind of service." Turning now to the decisions of this court : In Boswell's Lessee v. Otis, 9 How. 336, 348, was presented a case of a bill for a specific performance and an accounting, and in which was a decree for specific performance and accounting ; and an adjudication that the amount due on such accounting should operate as a judgment at law. Service was had by publication, the defendants being non-residents. The validity of a sale under such judgment was in question ; the court held that portion of the decree, and the sale made under it, void ; but with refer- ence to jurisdiction in a case for specific performance alone, made these observations : " Jurisdiction is acquired in one of two modes : first, as against the person of the defendant, by the service of process ; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a pro- ceeding in rem. A bill for the specific execution of a contract to con- vey real estate is not strictly a proceeding in rem, in ordinary cases ; but where such a procedure is authorized by statute, on publication, without personal service or process, it is substantially of that character." In the case of Parker v. Overman. 18 How. 137, 140, the question was presented under an Arkansas statute, a statute authorizing service by publication. While the decision on the merits was adverse, the court thus states the statute, the case and the law applicable to the proceedings un- der it : "It had its origin in the State court of Dallas County, Arkansas, sitting in chancery. It is a proceeding under a statute of Arkansas, pre- scribing a special remedy for the confirmation of sales of land by a sheriff or other public officer. Its object is to quiet the title. The purchaser at such sales is authorized to institute proceedings by a public notice in some newspaper, describing the land, stating the authority under which it was sold, and ' calling on all persons who can set up any right to the lands so purchased, in consequence of any informality, or any irregu- larity or illegality connected with the sale, to show cause why the sale so made should not be confirmed.' In case no one appears to contest the regularity of the sale, the court is required to confirm it, on finding certain facts to exist. But if opposition be made, and it should ap- peal- that the sale was made ' contrary to law.' it became the duty of the court to annul it. The judgment or decree, in favor of the grantee in the deed, operates ' as a complete bar against any and all persons who may thereafter claim such land, in consequence of any informality or illegality in the proceedings.' It is a very great evil in any com- munity to have titles to land insecure and uncertain; and especially in new States, where its result is to retard the settlement and improve- 314 AENDT V. GRIGGS. [CHAP. III. ment of their vacant lands. Where such lands have been sold for taxes there is a cloud on the title of both claimants, which deters the settler from purchasing from either. A prudent man will not purchase a lawsuit, or risk the loss of his money and labor upon a litigious title. The act now under consideration was intended to remedy this evil. It is in substance a bill of peace. The jurisdiction of the court over the controversy is founded on the presence of the property ; and, like a proceeding in rem, it becomes conclusive against the absent claimant, as well as the present contestant. As was said by the court in Clark v. Smith, 13 Pet. 195, 203, with regard to a similar law of Kentucky: ' A State has an undoubted power to regulate and protect individual rights to her soil, and declare what shall form a cloud over titles ; and, having so declared, the courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the country. The State legislatures have no authority to prescribe forms and modes of proceeding to the courts of the United States ; yet having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed be substantially consistent with the ordinary modes of proceeding on the chancery side of the Federal courts, no reason exists why it should not be pursued in the same form as in the State court.' In the case before us the proceeding, though special in its form, is in its nature but the application of a well known chancery remedy ; it acts upon the land, and may be conclusive as to the title of a citizen of another State." In the case of Pennoyer v. Neff, 95 U. S. 714, 727, 734, in which the question of jurisdiction in cases of service by publication was con- sidered at length, the court, by Mr. Justice Field, thus stated the law : " Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some inter- est therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceed- ings in rem. ... It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the dis- position of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned." These cases were all before the decision of Hart v. Sansom. Passing to a case later than that, Hiding v. Kaw Valley Railway, SECT. I.] ARNDT V. GRIGGS. 315 130 U. S. 559, 563, it was held that, in proceedings commenced under a statute for the condemnation of lands for railroad purposes, publica- tion was sufficient notice to a non-resident. In the opinion, Mr. Jus- tice Miller, speaking for the court, says : " Of course, the statute goes upon the presumption that, since all the parties cannot be served per- sonally with such notice, the publication, which is designed to meet the eyes of everybody, is to stand for such notice. The publication itself is sufficient if it had been in the form of a personal service upon the party himself within the county. Nor have we any doubt that this form of warning owners of property to appear and defend their interests, where it is subject to demands for public use when authorized by statute, is sufficient to subject the property to the action of the tribunals ap- pointed by proper authority to determine those matters. The owner of real estate, who is a non-resident of the State within which the property lies, cannot evade the duties and obligations, which the law imposes upon him in regard to such property, by his absence from the State. Be- cause he cannot be reached by some process of the courts of the State, which, of course, have no efficacy beyond their own borders, he cannot, therefore, hold his property exempt from the liabilities, duties, and obli- gations which the State has a right to impose upon such property ; and in such cases, some substituted form of notice has always been held to be a sufficient warning to the owner, of the proceedings which are being taken under the authority of the State to subject his property to those demands and obligations. Otherwise the burdens of taxation and the liability of such property to be taken under the power of eminent domain, would be useless in regard to a very large amount of propertv in every State of the Union." In this connection, it is well to bear in mind, that by the statutes of the United States, in proceedings to enforce any legal or equitable lien, or to remove a cloud upon the title of real estate, non-resident holders of real estate may be brought in by publication, 18 Stat. 472; and the validity of this statute, and the jurisdiction conferred by publication, has been sustained by this court. Mellen v. Moline Iron Works, 131 U. S. 352. These various decisions of this court establish that, in its judgment, a State has power by statute to provide for the adjudication of titles to real estate within its limits as against non-residents who are brought into court only by publication ; and that is all that is necessary to sus- tain the validity of the decree in question in this case. Nothing inconsistent with this doctrine was decided in Hart v. San- som, supra. The question there was as to the effect of a judgment. That judgment was rendered upon a petition in ejectment against one Wilkerson. Besides the allegations in the petition to sustain the eject- ment against Wilkerson, were allegations that other defendants named had executed deeds, which were described, which were clouds upon plaintiffs' title; and in addition an allegation that the defendant Hart, Bel up some pretended claim of title to the land. This was the only averment connecting liim with the controversy. Publication was made 316 ARNDT V. GRIGGS. [CHAP. III. against some of the defendants, Hart being among the number. There was no appearance, but judgment upon default. That judgment was, that the plaintiffs recover of the defendants the premises described ; " that the several deeds in plaintiffs' petition mentioned be, and the same are, hereby annulled and cancelled, and for naught held, and that the cloud be thereby removed ; " and for costs, and that execution issue therefor. This was the whole extent of the judgment and decree. Obviously in all this there was no adjudication affecting Hart. As there was no allegation that he was in possession, the judgment for possession did not disturb him ; and the decree for cancellation of the deeds referred specifically to the deeds mentioned in the petition, and there was no allegation in the petition that Hart had anything to do with those deeds. There was no general language in the decree quieting the title as against ail the defendants ; so there was nothing which could be construed as working any adjudication against Hart as to his claim and title to the land. He might apparently be affected by the judg- ment for costs, but they had no effect upon the title. So the court held, for it said : " It is difficult to see how any part of that judgment (except for costs) is applicable to Hart ; for that part which is for recover}' of possession certainly cannot apply to Hart, who was not in possession ; and that part which removes the cloud upon the plaintiffs' title appears to be limited to the cloud created by the deeds mentioned in the petition, and the petition does not allege, and the verdict nega- tives, that Hart held any deed." An additional ground assigned for the decision was that if there was any judgment (except for costs) against Hart, it was, upon the most liberal construction, only a decree removing the cloud created by his pretended claim of title, and therefore, according to the ordinary and undisputed rule in equity, was not a judgment in rem, establishing against him a title in the land. But the power of the State, by appro- priate legislation, to give a greater effect to such a decree was dis- tinctly recognized, both by the insertion of the words " unless otherwise expressly provided by statute," and by adding: " It would doubtless be within the power of the State in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose." And of course it follows that if a State has power to bring in a non-resident by publica- tion for the purpose of appointing a trustee, it can, in like manner, bring him in and subject him to a direct decree. There was presented no statute of the State of Texas providing directly for quieting the title of lands within the State, as against non-residents, brought in only by service by publication, such as we have in the case at bar, and the only statute cited by counsel or referred to in the opinion was a mere general provision for bringing in non-resident defendants in any case by publication ; and it was not the intention of the court to overthrow that series of earlier authorities heretofore referred to, which affirm the SECT. I.] TYLER V. JUDGES OF THE COURT OF REGISTRATION. 317 power of the State, by suitable statutory proceedings, to determine the titles to real estate within its limits, as against a non-resident defend- ant, notified only by publication. It follows, from these considerations, that the first question presented in the certificate of division, the one heretofore stated, and which is decisive of this case, must be answered in the alfirmative. 1 TYLER v. JUDGES OF THE COURT OF REGISTRATION. Supreme Judicial Court of Massachusetts. 1900 [Hi' ported 175 Massachusetts, 71.] Holmes, C. J. This is a petition for a writ of prohibition against the judges of the Court of Registration, established b}- St. 1898, c. 562, and is brought to prevent their proceeding upon an applica- tion concerning land in which the petitioner claims an interest. The ground of the petition is that the act establishing the court is uncon- stitutional. Two reasons are urged against the act, both of which are thought to go to the root of the statute, and to make action under it impossible. The first and most important is, that the original registra- tion deprives all persons except the registered owner of any interest in the land, without due process of law. There is no dispute that the object of the system, expressed in sect. 38, is, that the decree of regis- tration " shall bind the land and quiet t!ie title thereto," and "shall be conclusive upon and against all persons," whether named in the pro- ceedings or not, subject to few and immaterial exceptions ; and, this being admitted, it is objected that there is no sufficient process against, or notice to, persons having adverse claims, in a proceeding intended to bar their possible rights. The application for registration is to be in writing, and signed and sworn to. It is to contain an accurate description of the land, to set forth clearly other outstanding estates or interests known to the peti- tioner, to identify the deed by which he obtained title, to state the name and address of the occupant, if there is one, and also to give the names and addresses, so far as known, of the occupants of all lands adjoining (sect. 21). As soon as it is filed, a memorandum containing a copy of the description of the land concerned is to be filed in the registry of deeds (sect. 20). The case is immediately referred to an examiner appointed by the judge (sect. 12), who makes as full an in- vestigation as he can, and reports to the court (sect. 29). If, in the opinion of the examiner, the applicant has a good title, as alleged, or if the applicant, after an adverse opinion, elects to proceed further, the 1 Ace. McLaughlin v. McCrory, 55 Ark. 412, 18 S. \V. 762; Loaiza v. Superior Court, 85 Cal. 11, •-'! Pac. 7"7 ; Felch v. Hooper, 119 Mass. 52 ; Short v. Caldwell, 155 Mass. 57, 28 N. E. 1124.— Ed. 318 TYLER V. JUDGES OF THE COURT OF REGISTRATION. [CHAP. III. recorder is to publish a notice, by order of the court, in some news- paper published in the district where any portion of the land lies. This- notice is to be addressed, by name, to all persons known to have an adverse interest, and to the adjoining owners and occupants, so far as known, and to all whom it may concern. It is to contain a description of the land, the name of the applicant, and the time and place of the hearing (sect. 31). A copy is to be mailed to every person named in the notice whose address is known, and a duly attested copy is to be posted in a conspicuous place on each parcel of land included in the applica- tion, by a sheriff or deputy sheriff, fourteen days at least before the return day. Further notice may be ordered by the court (sect. 32). It will be seen that the notice is required to name all persons known to have an adverse interest, and this, of course, includes any adverse claim, whether admitted or denied, that may have been discovered by the examiner, or in any way found to exist. Taking this into account, we should construe the requirement in sect. 21, concerning the appli- cation, as calling upon the applicant to mention, not merely outstanding interests which he admits, but equally all claims of interest set up, although denied by him. We mention this here to dispose of an ob- jection of detail urged by the petitioner, and we pass to the general objection that, however construed, the mode of notice does not satisfy the constitution, either as to persons residing within the State upon whom it is not served, or as to persons residing out of the State and not named. If it does not satisfy the constitution, a judicial proceeding to clear titles against all the world hardly is possible ; for the veiy meaning of such a proceeding is to get rid of unknown as well as known claims, — indeed, certainty against the unknown may be said to be its chief end ; and unknown claims cannot be dealt with by personal service upon the claimant. It seems to have been the impression of the Supreme Court of Ohio, in the case most relied upon by the petitioner, that such a judicial proceeding is impossible in this country. State v. Guilbert, 56 Ohio St. 575, 629, 47 N. E. 551. But we cannot bring ourselves to doubt that the constitutions of the United States and of Massachu- setts at least permit it as fully as did the common law. Prescription or a statute of limitations may give a title good against the world, and destroy all manner of outstanding claims, without any notice or judicial proceeding at all. Time, and the chance which it gives the owner to find out that he is in danger of losing rights, are due process of law in that case. Wheeler v. Jackson, 137 U. S. 245, 258. The same result used to follow upon proceedings which, looked at apart from history, ma}' be regarded as standing half-way between statutes of limitations and true judgments in rem, and which took much less trouble about giving notice than the statute before us. We refer to the effect of a judgment on a writ of right after the mise joined and the lapse of a year and a day (Booth, Real Act. 101, in margin ; Fitzh. Abr. " Con- tinual Claim," pi. 7 ; Faux Recovere, pi. 1 ; Y. B. 5 Edw. III. 51, SECT. I.] TYLER V. JUDGES OF THE COURT OF REGISTRATION. 319 pi. 60) ; and of a fine, with proclamations after the same time ; or by a later statute after five years (2 Bl. Coram. 354; 2 Inst. 510, 518; St. 18 Edw. I., "Modus Levandi Fines;" St. 34 Edw. III. c. 16; St. 4 Hen. VII. c. 24 ; St. 32 Hen. VIII. c. 36). It would have astonished John Adams to be told that the framers of our constitution had put an end to the possibility of these ancient institutions. A somewhat similar statutory contrivance of modern days lias been held good. Turner v. People, 168 U. S. 90. Finally, as was [jointed out by the counsel for the petitioners, a proceeding in rem, in the proper sense of the words, miidit give a clear title without other notice tban a seizure of the res and an exhibition of the warrant to those in charge. 2 Browne, Civil Law, 398. The general requirement of advertisement in admiralty cases is said to be due to rules of court. U. S. Adm. Rule 9 ; Betts, Adm. (1838) 33, 34, App. 14. The prohibition in the Fourteenth Amendment against a State de- priving any person of his property without due process of law, and that in the twelfth article of the Massachusetts Bill of Rights, refer to some- what vaguely determined criteria of justification, which may be found in ancient practice (Murray's Lessee r. Improvement Co., 18 How. 272, 277) ; or which may be found in convenience and substantial jus- tice, although the form is new. (Hurtado v. California, 110 U. S. 516, 528, 531 ; Holden v. Hardy, 169 U. S. 366, 388, 389.) The prohibi- tions must be taken largely with a regard to substance rather than to form, or the)' are likely to do more harm than good. It is not enough to show a procedure to be unconstitutional to say that we never have heard of it before. Hurtado w. California, 110 U. S. 516, 537. Looked at either from the point of view of history or of the necessary require- ments of justice, a proceeding in rem, dealing with a tangible res, may be instituted and carried to judgment without personal service upon claimants within the State, or notice by name to those outside of it, and not encounter any provision of either constitution. Jurisdiction is secured by the power of the court over the res. As we have said, such a proceeding would be impossible were this not so ; for it hardly would do to make a distinction between the constitutional rights of claimants who were known and those who were not known to the plaintiff, when the proceeding is to bar all. IVnnover /•. Neff, 95 U. S. 714, 727 ; "The Mary," 9 Cranch, 126, 114; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030; Brown v. Board. 50 Miss. 468,481, 2 Freem. Judgm. (4th ed.) §§ 606, 611. In Hamilton v. Brown, 161 U. S. 256, a judgment of escheat was held conclusive upon persons notified only by advertisement, to all persons interested. It is true that the statute under consideration required the petition to name all known claimants, and personal service to be made on those so named. But that did the plaintiffs no good, as they were not named. So, a decree allowing or disallowing a will binds everybody, although the only notice of the proceedings given be a general notice to all persons interested. And in this case, as in that of escheat just cited, the con- 320 TYLER V. JUDGES OF THE COURT OF REGISTRATION. [CHAP. III. elusive effect of the decree is not put upon the ground that, the State has an absolute power to determine the persons to whom a man's prop- erty shall go at his death, but upon the characteristics of a proceed- ing in rem. Bonnemort v. Gill, 167 Mass. 338, 340, 45 N. E. 768. See 161 U. S. 263, 274. Admiralty proceedings need only to be mentioned in this connection, and further citation of cases seems unnecessary. Speaking for myself, I see no reason why what we have said as to proceedings in rem in general should not apply to such proceedings concerning land. In Arndt v. Griggs, 134 U. S. 316, 327, it is said to be established that " a State has power, by statute, to provide for the adjudication of titles to real estate within its limits as against non- residents who are brought into court only by publication." In Hamil- ton v. Brown, 161 U. S. 256, 274, it was declared to be within the power of a State " to provide for determining and quieting the title to real estate within the limits of the State, and within the jurisdiction of the court, after actual notice to all known claimants, and notice by publication to all other persons." I doubt whether the court will not take the further step when necessary, and declare the power of the States to do the same thing after notice by publication alone. See Huling v. Improvement Co., 130 U. S. 559, 564 ; Parker v. Overman, 18 How. 137, 140, 141. But in the present case provision is made for notice to all known claimants by the recorder, who is to mail a copy of the published notice to every person named therein whose address is known (sect. 32). We shall state in a moment one reason for thinking this form of notice constitutional. See, further, Cook v. Allen, 2 Mass. 462, 469, 470 ; Dascomb v. Davis, 5 Met. 335, 340 ; Brock v. Railroad Co., 146 Mass. 194, 195, 15 K E. 555. But it is said that this is not a proceeding in rem. It is certain that no phrase has been more misused. In the past it has had little more significance than that the right alleged to have been violated was a right in rem. Austin thinks it necessary to quote Leibnitz for the sufficiently obvious remark that every right to restitution is a right in personam. So as to actions. If the technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory at least, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam, although it may concern the right to, or possession of, a tangible thing. Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030. If, on the other hand, the object is to bar indifferently all who might be minded to make an objec- tion of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the proceeding is in rem. 2 Freem. Judgm. (4th ed.) § 606, ad fin. All proceedings, like all rights, are really against persons. Whether they are proceed- ings or rights in rem depends on the number of persons affected. SECT. I.] TYLER V. JUDGES OF THE COURT OF REGISTRATION. 321 Hence the res need not be personified, and made a party defendant, as happens with the ship in the admiralty. It need not even be a tangible thing at all, as sufficiently appears by the case of the probate of wills. Personification and naming the res as defendant are mere symbols, not the essential matter. They are fictions, conveniently expressing the nature of the process and the result, nothing more. It is true, as an historical fact, that these symbols are used in admi- ralty proceedings ; and also, again, merely as an historical fact, that proceedings in rem have been confined to cases where certain classes of claims, although of very divers sorts, for indemnification for injury, for wages, for salvage, etc., are to be asserted. But a ship is not a person. It cannot do a wrong or make a contract. To say that a ship has com- mitted a tort is merely a shorthand way of saying tuat }-ou have decided to deal with it as if it had committed one, because some man has com- mitted one in fact. There is no a priori reason wiry an} - other claim should not be enforced in the same way. If a claim for a wrong com- mitted by a master may be enforced against all interests in the vessel, there is no juridical objection to a claim of title being enforced in the same way. The fact that it is not so enforced under existing practice . affords no test of the powers of the legislature. The contrary view would indicate that you really believed the fiction that a vessel had an independent personality as a fact behind the law. Furthermore, naming the res as defendant, although a convenient way of indicating that the proceeding is against property alone, — that is to say, that it is not to establish an infinite personal liability, — is not of the essence. If, in fact, the proceeding is of that sort, and is to bar all the world, it is a proceeding in rem. So, as to seizure of the res. It is convenient in the case of a vessel, in order to secure its being on hand to abide judgment, although in the case of a suit against a man jurisdiction is regarded as established b} r service, without the need of keeping him in prison to await judgment. It is enough that the personal service shows that he could have been seized and imprisoned. Seizure, to be sure, is said to be notice to the owner. Scott v. Shearman, 2 W. Bl. 977, 979 ; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030. But fastening the process or a copy to the mast would seem not necessaril}- to depend for its effect upon the continued custody of the vessel by the marshal. However this may be, when we come to deal with immovables, there would be no sense whatever in declaring seizure to be a constitutional condition of the power of the legislature to make a proceeding in rem. Hamilton v. Brown, 1G1 U. S. 25G, 274. The land cannot escape from the jurisdic- tion, and, except as security against escape, seizure is a mere form of no especial sanctity, and of much possible inconvenience. I do not wish to ignore the fact that seizure, when it means real dispossession, is another security for actual notice. But when it is considered how purely formal such an act may be, and that even ad- verse possession is possible without ever coming to the knowledge of ?1 322 TYLER V. JUDGES OF THE COURT OF REGISTRATION. [CHAP. III. a reasonably alert owner, I cannot think that the presence or absence of the form makes a constitutional difference ; or, rather, to express my view still more cautiously, I cannot but think that the immediate recording of the claim is entitled to equal effect from a constitutional point of view. I am free to confess, however, that, with the rest of my brethren, 1 think the act ought to be amended in the direction of still further precautions to secure actual notice before a decree is entered, and that, if it is not amended, the judges of the court ought to do all that is in their power to satisfy themselves that there has been no failure in this regard before they admit a title to registration. The quotations which we have made show the intent of the statute to bind the land, and to make the proceedings adverse to all the world, even if it were not stated in sect. 35, or if the amendment of 1899 did not expressly provide that they should be proceedings in rem. St. 1899, c. 131, § 1. Notice is to be posted on the land just as admi- ralty process is fixed to the mast. Any person claiming an interest may appear and be heard (sect. 34). But perhaps the classification of the proceeding is not so important as the course of the discussion thus far might seem to imply. 1 have pursued that course as one which is satisfactory to my own mind ; but, for the purposes of decision, a majority of the court prefer to assume that in cases in which, under the constitutional requirements of due process of law, it heretofore has been necessary to give to parties inter- ested actual notice of the pending proceeding by personal service or its equivalent, in order to render a valid judgment against them, it is not in the power of the legislature, by changing the form of the proceeding from an action in personam to a suit in rem, to avoid the necessity of giving such a notice, and to assume that, under this statute, personal rights in property are so involved, and may be so affected, that effectual notice, and an opportunity to be heard, should be given to all claimants who are known, or who by reasonable effort can be ascertained. It would hardly be denied that the statute takes great precautions to discover outstanding claims, as we already have shown in detail, or that notice by publication is sufficient with regard to claimants outside the State. With regard to claimants living within the State, and re- maining undiscovered, notice by publication must suffice, of necessity. As to claimants living within the State and known, the question seems to come down to whether we can say that there is a constitutional difference between sending notice of a suit by a messenger and sending it by the post-office, besides publishing in a newspaper, recording in the registry, and posting on the land. It must be remembered that there is no con- stitutional requirement that the summons, even in a personal action, shall be served by an officer, or that the copy served shall be officially attested. Apart from local practice, it may be served by any indif- ferent person. It may be served on residents by leaving a copy at the last and usual place of abode. When we are considering a proceeding of this kind, it seems to us within the power of the legislature to say SECT. II.] BUCHANAN V. RUCKER. 323 that the mail, as it is managed in Massachusetts, is a sufficient mes- senger to convej* the notice, when other means of notifying the party, like publishing and posting, also are required. We agree that such an act as this is not to be upheld without anxiety. But the difference in degree between the case at bar and one in which the constitutionality of the act would be unquestionable seems to us too small to warrant a distinction. If the statute is within the power of the legislature, it is not for us to criticise the wisdom or expediency of what the legislature has done. We do not think it necessary to refer to the elaborate collection of statutes presented by the attorney-general for the purpose of showing that the principle of the present act is old. Although no question is made on that point, we may mention that an appeal is given to the Superior Court, with the right to claim a jury. In our opinion, the main objection to the act fails. See Shepherd v. Ware, 46 Minn. 174, 48 N. W. 773 ; People v. Simon, 176 111. 165, 52 N. E. 910 ; Short v. Caldwell, 155 Mass. 57, 59, 28 N. E. 1124; Loring v. Hildreth, 170 Mass. 328, 49 N. E. 652. 1 Loring and Lathrop, JJ., dissented. SECTION II. personal jurisdiction. BUCHANAN v. RUCKER. King's Bench. 1808. [Reported 9 East, 192.] The plaintiff declared in assumpsit for £2,000 on a foreign judgment of the Island Court in Tobago ; and at the trial ( Vide 1 Campbell's Ni. Pri. Cas. 63) before Lord Ellenborough, C. J., at Guildhall, pro- duced a copy of the proceedings and judgment, certified under the handwriting of the Chief Justice and the seal of the island, which were proved ; which, after containing an entry of the declaration, set out a summons to the defendant, therein described as " formerly of the city of Dunkirk, and now of the city of London, merchant," to appear at the ensuing court to answer the plaintiff's action ; which summons was returned "served, etc., by nailing up a copy of the declaration at the court-house door," etc., on which judgment was afterwards given by default. Whereupon it was objected, that the judgment was obtained against the defendant, who never appeared to have been within the limits of the island, nor to have had any attorney there ; nor to have been in any other way subject to the jurisdiction of 1 The remainder of the opinion and the dissenting opinion are omitted. — Ed. 8-J4 BUCHANAN V. RUCKER. [CHAP. III. the court at the time ; and was therefore a nullity. And of this opinion was Lord Ellenborough ; though it was alleged (of which however there was no other than parol proof) that this mode of summoning absentees was warranted by a law of the island, and was commonly practised there ; and the plaintiff was thereupon nonsuited. And now Taddy moved to set aside the nonsuit, and for a new trial, on an affidavit verifying the island law upon this subject, which stated, " That every defendant against whom any action shall be entered, shall be served with a summons and an office copy of the declaration, with a copy of the account annexed, if any, at the same time, by the Provost Marshal, etc., six days before the sitting of the next court, etc. ; and the Provost Marshal is required to serve the same on each defendant in person. But if such defendant cannot be found, and is not absent from the island ; then it shall be deemed good service by leaving the summons, etc., at his most usual place of abode. And if the defendant be absent from the island, and hath a power of attorney recorded in the secretary's or registrar's office of Tobago, and the attorney be resident in the island, or any manager or overseer on his plantation in the island, the service shall be either upon such attorney personally, or by leaving it at his last place of abode, or upon such overseer or manager personally, or by leaving it at the house upon the defendant's plantation where the overseer or manager usually resides. But if no such attorney, overseer, or manager, then the nailing up a copy of the declaration and summons at the entrance of the court- house shall be held good service." Lord Ellenborough, C. J. There is no foundation for this motion even upon the terms of the law disclosed in the affidavit. By persons absent from the island must necessarily be understood persons who have been present and within the jurisdiction, so as to have been subject to the process of the court ; but it can never be applied to a person who for aught appears never was present within or subject to the jurisdiction. Supposing, however, that the act had said in terms, that though a person sued in the island had never been present within the jurisdiction, yet that it should bind him upon proof of nailing up the summons at the court door : how could that be obligatory upon the subjects of other countries ? Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction? The law itself, however, fairly construed, does not warrant such an inference: for "absent from the island" must be taken only to apply to persons who had been present there, and were subject to the jurisdiction of the court out of which the process issued ; and as nothing of that sort was in proof here to show that the defendant was subject to the jurisdiction at the time of com- mencing the suit, there is no foundation for raising an assumpsit in law upon the judgment so obtained. Per Curiam. Bule refused.* 1 Ace. Wood v. "Watkinson, 17 Conn. 500 ; Howell v. Gordon, 40 Ga. 302 ; Beard v. Beard, 21 Ind. 321 ; Rand v. Hanson, 154 Mass. 87 ; Cocke v. Brewer, 68 Miss. SECT. II.] DOUGLAS V. FORREST. 325 DOUGLAS v. FORREST. Court of Common Pleas. 1828. [Reported 4 Bingham, 686.] Best, C. J. 1 This was an action brought b}- the assignees of Stein and Co., bankrupts, against the executor of the will of John Hunter. On the 31st Ma}', 1799, the testator acknowledged himself to be indebted to Stein and Co. in the sum of £447 6s. 3d. ; and on the 11th June, in the same year, he acknowledged that he owed £75 to Robert Smith, one of the bankrupts, and one of the firm of Stein and Co. These debts were contracted in Scotland, of which country the deceased was a native, and in which he had a heritable property. Shortly after the year 1799, the deceased went to India. He died in India in 1817, having never revisited Scotland. On the 25th February, 1802, two decrees were pronounced in the Court of Session in Scotland against the deceased, one at the instance of Stein and Co., and the other at the instance of Robert Smith. In the first of these the deceased was ordered to pay to Stein and Co. £447 6s. 3d., with interest, from the day of besides expenses of process, etc. In the second decree the deceased was ordered to pa\ - Robert Smith the sum of £75, with interest, from the of , besides expenses of process, etc. It appeared, from these decrees, that the deceased was out of Scotland at the time the proceedings were instituted in these causes. He never had an} 7 notice of those proceedings. The decrees stated, that the deceased had been (accord- ing to the law of Scotland) summoned at the market cross of Edinburgh, and at the pier and shore of Leith. A Scotch advocate proved, that, by the law of Scotland, the Court of Session might pronounce judgment against a native Scotchman who had heritable propert}' in that country, for a debt contracted in Scotland, although the debtor had no notice of any of the proceedings, and was out of Scotland at the time. After such proclamations as were mentioned in these decrees had been made, the same witness proved, that a person against whom such a decree was pronounced might, at any time within forty years, dispute the merits of such decree ; but that after the expiration of forty years, it was conclusive against him, and all who claimed under him. By a decree of the < Jourt of Session, of the date of the 5th July, 1804, that court adjudged that certain properly which the deceased possessed in Scotland should belong to Robert Smith and his heirs, in payment and satisfaction of the sum of £!■>. mth interest, from the 11th June, 1799. By another decree of the same date, the Court of Sessions 775. 9 So. 823 ; WTiittier v. Wendell, 7 N. II. 267 ; Schwinger v. Hickok, 53 N. Y. 280; Price v. Schaeffer, 181 Pa. 530, 29 Atl. 279. — Ed. 1 Part of the opinion i^ omitted. — Ed. 326 DOUGLAS V. FORREST. [CHAP. III. adjudged, that certain other property of the deceased in Scotland should belong to Stein and Co. and their heirs, in payment and satis- faction of the sum of £447 6s. 3cL, with interest, from the 11th of June, 1799. The two last decrees fill up the blanks left in the first decrees, by giving the time from which interest was to be paid on the debts, namely, from the 11th June, 1799; and if the plaintiffs can maintain their action, entitles them to a verdict for the sum of £862. The terms in which the two last decrees are expressed, seem to import that the lands adjudged to Stein and Co. and Smith were given to and accepted by them, in satisfaction of these debts ; but this cannot be the true construction of these decrees, because none of the decrees are conclusive against the deceased and those who claim under him, until the expiration of forty 3'ears from the time of pronouncing the two first decrees. The advocate who was examined in the cause proved, that by the law of Scotland, these decrees would not operate as satisfaction of the debts, during the period that the debtor had a right to dispute the validity of the first judgments. A Scotch statute, which we have looked into, shows the accuracy of the opinion given to us on the Scotch laws by the learned advocate ; and I feel it due to him to say, that, from the manner in which he gave his evidence, the clearness and precision with which he explained the grounds of his opinion, I have no doubt that he is extremeby well acquainted with the Scotch law, and that we may safely rely on every part of his evidence. The two last decrees, proving that interest was to run from 1799, and the testimony of the learned advocate, who proved, that when decrees adjudged that interest should be paid, but did not show the time from which it was to run, interest was payable from the time of the citation, — disposes of the objection that no interest could be recovered upon these decrees. The plaintiffs rested their claim on these decrees. The defendant insisted that these decrees would not support an action in our courts, because they were repugnant to the principles of justice, having been pronounced whilst the deceased was at a great distance from Scotland, and without any notice given to bim that any proceedings were insti- tuted against him. This defence was made on the general issue. The defendant also pleaded, that the plaintiff's cause of action did not accrue within six }*ears before the commencement of the suit. To this there was a replication, that the deceased, at the time when the cause of action accrued, was beyond seas, and remained be3 - ond the seas until the year 1817, when he died; and that the plaintiffs sued out their writ against the defendant within six years after he first took on himself the burthen and execution of the will of the deceased in Great Britain, and that he had no other executor in Great Britain. This replication was fully proved, and, therefore, the issue taken on it was properby found for the plaintiffs. The questions to be decided are, first, whether an action can be maintained in England on these judgments of the Court of Session in SECT. II. ] DOUGLAS V. FORREST. T-27 Scotland ; secondly, whether the replication is an answer to the pleas of the statute of limitations. On the first question we agree with the defendant's counsel, that if these decrees are repugnant to the principles of universal justice, this court ought not to give effect to them ; but we think that these decrees are perfectly consistent with the principles of justice. If we held that the}' were not consistent with the principles of justice, we should con- demn the proceedings of some of our own courts. If a debt be contracted within the city of London, and the creditor issues a sum- mons against the debtor to which a return is made, that the debtor hath nothing within the city by which he may be summoned, or, in plainer words, hath nothing by the seizure of which his appearance may be en- forced, goods belonging to the debtor in the hands of a third person, or money due from a third person to the debtor, may be attached ; and unless the debtor appears within a year and a day, and disputes his debt, he is forever deprived of his property or the debts due to him. In such cases the defendant may be in the East Indies whilst the proceedings are going on against him in a court in London, and may not know that any such proceedings are instituted. Instead of the forty years given by the Scotch law, he has only one year given to him to appear and prevent a decision that finally transfers from him his property. Lord Chief Justice De Grey thought this custom of foreign attachment was an unreasonable one, but it has existed from the earliest times in London, and in other towns in England, and in many of our colonies from their first establishment. Lord Chief Justice De Grey and the Court of Common Pleas, after much consideration, decided against the validity of the attachment, according to the report of Fisher u. Lane in 3 Wilson, 297, because the part}' objecting to it had never been sum- moned or had notice. The report of the same case in 2 Blackstone, 834, shows that the court did not think a personal summons necessary, or any summons that could convey any information to the person sum- moned, but a summons with a return of nihil; that is, such a summons as I have mentioned, namely, one that shows that the debtor is not within the city, and has nothing there, by the seizing of which he may be compelled to appear. The 54 G. III. c. 137 not only recognizes the practices on which these decrees are founded, as being according to the law of Scotland, but enacts, that on notices being given at the market cross at Edinburgh, and on the pier and shore of Leith, to debtors out of the kingdom, in default of their appearance the creditors may issue a sequestration against their effects. Can we say that a practice which the legislature of the United Kingdom has recognized and extended to other cases is contrary to the principles of justice? A natural-born subject of any country, quitting that country, but Leaving property under the protection of its law, even during his absence, owes obedience to those laws, particularly when those laws enforce a moral obligation. The deceased, before he left his native country, acknowdedged, under 328 SCHIBSBY V. WESTENHOLZ. [CHAP. III. his hand, that he owed the debts ; he was under a moral obligation to discharge those debts as soon as he could. It must be taken for granted, from there being no plea of plene administravit, that the deceased had the means of paying what was due to the bankrupts. The law of Scotland has only enforced the performance of a moral obligation, by making his executor pay what he admitted was due, with interest during the time that he deprived his creditors of their just debts. The reasoning of Lord Ellenborough, in the case of Buchanan v. Rucker (1 Campb. 63, and 9 East, 192), is in favor of these decrees. Speaking of a case decided by Lord Kenyon, his Lordship says, in that case the defendant had property in the island, and might be con- sidered as virtually present. The court decided against the validity of the attachment, because it did not appear that the party attached ever was in the island, or had any property in it. In both these respects that case is unlike the present. In the case of Cavan v. Stewart, Lord Ellenborough says, you must prove him summoned, or, at least, that he was once in the island of Jamaica, when the attachment issued. To be sure if attachments issued against persons who never were within the jurisdiction of the court issuing them could be supported and enforced in the country in which the person attached resided, the legislature of any country might authorize their courts to decide on the rights of parties who owed no allegiance to the government of such country, and were under no obligation to attend its courts, or obey its laws. We confine our judgment to a case where the party owed alle- giance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judgments were given, protected. The debts were contracted in the country in which the judgments were given, whilst the debtor resided in it. SCHIBSBY v. WESTENHOLZ. Queen's Bench. 1870. [Reported Law Reports, 6 Queen's Bench, 155.] Blackburn, J. This was an action on a judgment of a French tribu- nal given against the defendants for default of appearance. The pleas to the action were, amongst others, a plea of never in- debted, and, thirdly, a special plea asserting that the defendants were not resident or domiciled in France, or in any way subject to the juris- diction of the French court, nor did they appear ; and that they were not summoned, nor had any notice or knowledge of the pending of the proceedings, or any opportunity of defending themselves therefrom. On these pleas issue was joined. SECT. II.] SCHIBSBY V. WESTENHOLZ. 329 On the trial before rue the evidence of a French avocat was given, by which it appeared that by the law of France a French subject may sue a foreigner, though not resident in France, and that for this pur- pose an alien, if resident in France, was considered by the French law as a French subject. 1 The mode of citation in such a case, according to the French law, is by serving the summons on the Procureur Im- perial. If the foreign defendant thus cited does not within one month appear, judgment may be given against him, but he ma)' still, at any time within two months after judgment, appear and be heard on the merits. After that lapse of time the judgment is final and conclusive. The practice of the imperial government is, in such a case, to forward the summons thus served to the consulate of the country where the de- fendant is resident, with directions to intimate the summons, if prac- ticable, to the defendant ; but this, as was explained by the avocat, is not required by the French law, but is simply done by the imperial government voluntarily from a regard to fair dealing. It appeared by other evidence that the plaintiff in this case was a Dane resident in France. The defendants were also Danes, resident in London and carrying on business there. A written contract had been made between the plaintiff and defendants, which was in English, and dated in London, but no distinct evidence was given as to where it was signed. We think, however, that, if that was material, the fair intendment from the evidence was that it was made in London. By this contract the defendants were to ship in Sweden a cargo of Swedish oats free on board a French or Swedish vessel for Caen, in France, at a certain rate for all oats delivered at Caen. Payment was to be made on receipt of the shipping documents, but subject to correction for excess or deficiency according to what might turn out to be the delivery at Caen. From the correspondence it appeared that the plaintiff as- serted, and the defendants denied, that the delivery at Caen was short of the quantity for which the plaintiff had paid, and that the plaintiff made some other complaints as to the condition of the cargo, which were denied by the defendants. The plaintiff very plainly told the de- fendants that if they would not settle the claim he would sue them in the French courts. He did issue process in the manner described, and the French consulate in London served on the defendants a copy of the citation. The following admissions were then made, namely: that the judg- ment was regular according to French law; that it was given in favor of the plaintiff, a foreigner domiciled in France, against the defendants, 1 See Article 14 of the Code Civil: "L' Stranger mime non residaut en France pourra etre cite devant les tribunau x francais, pour l'exeoutkm des obligations par lui contractus en France avec un francais ; il pourra Stre traduit devant les tribiinaux de France pour les obligations par lui itractres en pays etranger en vers des francais." Codes Annot.'s )' process on officers and agents of 344 ST. CLAIR V. COX. [CHAP. III. foreign corporations doing business therein. Whilst the theoretical and legal view, that the domicile of a corporation is only in the State where it is created, was admitted, it was perceived that when a foreign corporation sent its officers and agents into other States and opened offices, and carried on its business there, it was, in effect, as much represented by them there as in the State of its crea- tion. As it was protected by the laws of those States, allowed to carry on its business within their borders, and to sue in their courts, it seemed only right that it should be held responsible in those courts to obligations and liabilities there incurred. All that there is in the legal residence of a corporation in the State of its creation consists in the fact that by its laws the corporators are associated together and allowed to exercise as a body certain functions, with a right of succession in its members. Its officers and agents constitute all that is visible of its existence; and they may be authorized to act for it without as well as within the State. There would seem, therefore, to be no sound reason why, to the extent of their agency, they should not be equally deemed to repre- sent it in the States for which they are respectively appointed when it is called to legal responsibility for their transactions. The case is unlike that of suits against individuals. They can act by themselves, and upon them process can be directly served, but a corporation can only act and be reached through agents. Serv- ing process on its agents in other States, for matters within the sphere of their agency, is, in effect, serving process on it as much so as if such agents resided in the State where it was created. A corporation of one State cannot do business in another State without the latter's consent, express or implied, and that consent may be accompanied with such conditions as it may think proper to impose. As said by this court in Lafayette Insurance Co. v. French: "These conditions must be deemed valid and effectual by other States and by this court, provided they are not repugnant to the Constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defence." 18 How. 404, 407; Paul v. Virginia, 8 Wall. 168. The State may, therefore, impose as a condition upon which a foreign corporation shall be permitted to do business within her limits, that it shall stipulate that in any litigation arising out of its transactions in the State, it will accept as sufficient the service of process on its agents or persons specially designated; and the condi- tion would be eminently fit and just. And such condition and stipu- lation may be implied as well as expressed. If a State permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, proc- ess shall be served upon its agents, the provision is to be deemed a SECT. II.] ST. CLAIR V. COX. 345 condition of the permission; and corporations that subsequently do business in the State are to be deemed to assent to such condition as full} 7 as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. The decision of this court in Lafayette Insurance Co. v. French, to which we have already referred, sustains these views. 1 The State of Michigan permits foreign corporations to transact business within her limits. Either by express enactment, as in the case of insurance companies, or by her acquiescence, they are as free to engage in all legitimate business as corporations of her own creation. Her statutes expressly provide for suits being brought by them in her courts; and for suits by attachment being brought against them in favor of residents of the State. And in these attachment suits they authorize the service of a copy of the writ of attachment, with a copy of the inventory of the property attached, on "any officer, member, clerk, or agent of such corporation" within the State, and give to a personal service of a copy of the writ and of the inventory on one of these persons the force and effect of personal service of a summons on a defendant in suits commenced by summons. It thus seems that a writ of foreign attachment in that State is made to serve a double purpose, — as a command to the officer to attach property of the corporation, and as a summons to the latter to appear in the suit. We do not, however, understand the laws as authorizing the service of a copy of the writ, as a summons, upon an agent of a foreign corporation, unless the corporation be engaged in business in the State, and the agent be appointed to act there. We so construe the words "agent of such corporation within this State." They do not sanction service upon an officer or agent of the corporation who resides in another State, and is only casually in the State, and not charged with any business of the corporation there. The decision in Newell v. Great Western Railway Co., reported in the 19th of Michigan Reports, supports this view, although that was the case of an attempted service of a declaration as the commence- ment of the suit. The defendant was a Canadian corporation own- ing and operating a railroad from Suspension Bridge in Canada to the Detroit line at Windsor opposite Detroit, and carrying passen- gers in connection with the Michigan Central Railroad Company, upon tickets sold by such companies respectively. The suit was commenced in Michigan, the declaration alleging a contract by the defendant to carry the plaintiff over its road, and its violation of the i Ace. Conipagnie Genirale Transatlantique v. Law, [1899] A. C. 43] : Fireman's Ins. Co. v. Thompson, 155 111. 204, to N. K. 488 ; Reyer v. Odd Fellows' Ace. Assoc, 157 Mass. 367. —Ed. 346 ST. CLAIR V. cox. [chap. hi. contract by removing him from its cars at an intermediate station. The declaration was served upon Joseph Price, the treasurer of the corporation, who was only casually in the State. The corporation appeared specially to object to the jurisdiction of the court, and pleaded that it was a foreign corporation, and had no place of busi- ness or agent or officer in the State, or attorney to receive service of legal process, or to appear for it; and that Joseph Price was not in the State at the time of service on him on any official business of the corporation. The plaintiff having demurred to this plea, the court held the service insufficient. "The corporate eutity," said the court, "could by no possibility enter the State, and it could do nothing more in that direction than to cause itself to be represented here by its officers or agents. Such representation would, however, neces- sarily imply something more than the mere presence here of a person possessing, when in Canada, the relation to the company of an officer or agent. To involve the representation of the company here, the supposed representative would have to hold or enjoy in this State an actual present official or representative status. He would be re- quired to be here as an agent or officer of the corporation, and not as an isolated individual. If he should drop the official or represent- ative character at the frontier, if he should bring that character no further than the territorial boundary of the government to whose laws the corporate body itself, and consequently the official positions of its officers also, would be constantly indebted for existence, it could not, with propriety, be maintained that he continued to possess such character by force of our statute. Admitting, therefore, for the purpose of this suit, that in given cases the foreign corporation would be bound by service on its treasurer in Michigan, this could only be so when the treasurer, the then official, the officer then in a manner impersonating the company, should be served. Joseph Price was not here as the treasurer of the defendants. He did not then represent them. His act in coming was not the act of the company, nor was his remaining the business or act of any besides himself. He had no principal, and he was not an agent. He had no official status or representative character in this State." 19 Mich. 344. According to the view thus expressed by the Supreme Court of Michigan, service upon an agent of a foreign corporation will not be deemed sufficient, unless he represents the corporation in the State. This representation implies that the corporation does busi- ness, or has business, in the State for the transaction of which it sends or appoints an agent there. If the agent occupies no repre- sentative character with respect to the business of the corporation in the State, a judgment rendered upon service on him would hardly be considered in other tribunals as possessing any probative force. In a case where similar service was made in New York upon an officer of a corporation of New Jersey accidentally in the former State, the Supreme Court of New Jersey said, that a law of another SECT. II.] ST. CLAIR V. COX. 3-47 State which sanctioned such service upon an officer accidentally within its jurisdiction was "so contrary to natural justice and to the principles of international law, that the courts of other States ought not to sanction it." Moulin v. Trenton Insurance Co., 24 N. J. L. 222, 234. Without considering whether authorizing service of a copy of a writ of attachment as a summons on some of the persons named in the statute — a member, for instance, of the foreigu corporation, that is, a mere stockholder — is not a departure from the principle of natural justice mentioned in Lafayette Insurance Co. v. French, which forbids condemnation without citation, it is sufficient to ob- serve that we are of opinion that when service is made within the State upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judg- ment, that it should appear somewhere in the record — either in the application for the writ, or accompanying its service, or in the plead- ings or the finding of the court — that the corporation was engaged in business in the State. The transaction of business by the cor- poration in the State, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there would, in our opinion, be sufficient prima facie evidence that the agent rep- resented the company in the business. It would then be open, when the record is offered as evidence in another State, to show that the agent stood in no representative character to the company, that his duties were limited to those of a subordinate employe, or to a par- ticular transaction, or that his agency had ceased when the matter in suit arose. In the record, a copy of which was offered in evidence in this case, there was nothing to show, so far as we can see, that the Winthrop Mining Company was engaged in business in the State when service was made on Colwell. The return of the officer, on which alone reli- ance was placed to sustain the jurisdiction of the State court, gave no information on the subject. It did not, therefore, appear even prima facie that Colwell stood in any such representative character to the company as would justify the service of a copy of the writ on him. The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a per- sonal judgment against the foreign corporation. The record was, therefore, properly excluded. Judgment affirmed. £48 COPIN V. ADAMSON, [CHAP. III. COPIN v. ADAMSON. Exchequer. 1874. [Reported Law Reports, 9 Exchequer, 345.] Declaration by the assignee in bankruptcy of the Societe de Com- merce de France, Limited, on a judgment for £151 15s. recovered on the 7th of February, 1867, in the empire of France, by him against the defendant in the Court of the Tribunal of Commerce of the Department of the Seine, being a court duly holden, and having jurisdiction in that behalf. Plea. 3. That the suit was commenced, according to the French law, by process and summons, and that the defendant was not at any time previous to the recovery of judgment resident or domiciled within the jurisdiction of the said court, nor is he a native of France, and he was not served with any process or summons, nor did he appear, nor had he any notice or knowledge of any process or summons, or any opportunity of defending himself. Replications. 1. That defendant was shareholder in a French com- pany, the articles of which provided that every shareholder must elect some domicile in Paris, or in default thereof would be taken to be domi- ciled at the office of an imperial procurator, for the purpose of service of process in all disputes arising out of the liquidation of the company between the shareholders and the company ; and that such disputes should be submitted to the proper French court. That service was made accordingly, as provided by French law. 2. That the law of France contained similar provisions. 1 Amphlett, B. An important question is raised on these replica- tions, involving the liability of a British subject to be sued in the courts of a foreign country. As to the first replication demurred to, the court is unanimously of opinion that the defendant is shown upon the face of it to have contracted with the company, of which he is a shareholder, and whose representative the plaintiff is, that he would, under the cir- cumstances disclosed, be amenable to the jurisdiction of the Court of the Tribunal of Commerce of the Department of the Seine. But as to the second replication, my brother Pigott and myself think that although the allegations are sufficient to show that the defendant's con- tract is to be governed by French law, still that they do not show that he is subject to the jurisdiction of the French court. The contract must be interpreted by an English tribunal. Now, the plaintiff seems to have thought that all he need allege is that French law is to govern the contract. But it by no means fol- lows that the defendant has subjected himself to a foreign jurisdiction. The cases which have been referred to show that before an English- man can be made amenable to a foreign court, he must bear either 1 The replications, stated at length hy the reporter, are here abridged. — Ed. SECT. II.] COPIN V. ADAMSON. 349 an absolute or a qualified or temporary allegiance to the country in which the court is. He must, as is pointed out by Blackburn, J., in Schibsby v. Westenholz, Law Rep. 6 Q. B. 155, p. 161, be a subject of the country, or as a resident there when the action was commenced (or perhaps it would be enough if he were there when the obligation was contracted, though upon this point doubt is expressed), so as to be under the protection of or amenable to its laws. The learned judge also puts two other cases in which a person might be bound, — one where he. as plaintiff, has selected his tribunal, and the other where he has voluntarily appeared before it and takes the chance of a judgment in his favor. The defendant's liability in the latter case, however, is left an open question. But independently of that question, I appre- hend that a man ma} - contract with others that his rights shall be de- termined not only by foreign law, but by a foreign tribunal, and thus, by reason of his contract, and not of any allegiance absolute or quali- fied, would become bound by that tribunal's decision. It is upon this ground that I decide the demurrer to the first replication in the plain- tiff's favor. I think that the defendant must be taken to have agreed that if he did not elect a domicile one should be elected for him ; for the articles of association provide for its being done. It is said that it is not sufficiently stated that he had notice of this particular provision ; but I think it must be implied that he had notice, from the fact of his becoming a shareholder in ttie company. I now proceed to consider the second replication, which is silent as to the statutes or articles of association, but simply alleges that according to French law the members of the company w >-e bound to elect a domicile ; and that, according to French law, upon default a domicile would be elected for them at a public office, where process might be served, and that they would be bound thereby. I confess I cannot find a case which has gone so far as to hold a defendant liable, under such circumstances, upon a foreign judgment obtained, as this was, without any knowledge on his part of the proceedings. Can it be said that an Englishman, for example, who buys a share in a foreign company on the London Stock Exchange, thereby becomes necessarily bound by an}' decision to which the foreign tribunal may come upon a matter affecting his interests? Suppose there had been a provision by the law of France that whenever a member neglected to elect a domi- cile he should pay double calls, are we to enforce his liability in an action on a judgment for such calls obtained against him without his knowledge in the foreign court? No doubt in the present case, where the law of France is in question, the probability is that the shareholder would not be subjected to any extraordinary or unjust liabilities. But if the principle of law is that which the plaintiff contends for, it must be applied in cases of countries where the law might be very much more open to objection than it is likely to be in a country such as France. It is said, however, that the authorities upon the point are decisive. 350 COPIN V. ADAMSON. [CHAP. III. and two were especially relied on. The first was the Bank of Austral- asia v. Harding, 9 C. B. 661, 19 L. J. (C. P.) 345 ; and it is, I agree, a strong authority in support of the first replication, but not of the second. In that case there had been a local act obtained giving power to the company's creditors to obtain judgment against a representative of all the members, and enacting that by that judgment all the mem- bers should be bound ; and it was upon the circumstance that the act existed that the judgment of the court was founded ; and nothing falls from any of the judges to indicate that the}' would have held the defendant bound if there had been no such act. In their opinion the defendant was to be considered as a consenting party to the passing of the act, or as one of the parties at whose request it was passed, and therefore bound b} r its provisions. See per Wilde, C.J., and Cress- well, J., pp. 685, 687. In the absence of such consent, it seems to me that the court would have come to a contrary conclusion. The second case relied on was Vallee v. Dumergue, 4 Ex. 290, 18 L. J. (Ex.) 398 ; but here, again, although the decision supports the first, it fails to support the second replication. There the defendant had become by transfer the owner of shares in a French company ; and upon accepting the shares was bound, according to French law, to elect a domicile. He actually did so, and gave notice of his election to the company. He was, therefore, aware of what the French law was, and had complied with it. Then, having left the country, notice of process was, as here, left at the elected domicile, but never reached the defend- ant against whom judgment by default was recovered. It was held he was liable on the judgment, but upon the ground that he had done something more than become a shareholder in the company ; he had so conducted himself as to warrant the inference that he had agreed to be bound by the decision of the foreign court. " The replication consists," says Alderson, B. (p. 303) '"of a statement of facts which show that bj' the agreement to which the defendant has become a party, no actual notice need be given to him;" and, again (p. 303), "It is not con- trary to natural justice that a man who has agreed to receive a partic- ular mode of notification of legal proceedings should be bound by a judgment in which that particular mode has been followed, even though he may not have had actual notice of them." For these reasons my judgment (in which my brother Pigott con- curs) is for the plaintiff upon the demurrer to the first replication, and for the defendant upon the demurrer to the second. Judgment accordingly. 1 Kelly, C. B. 2 [dissenting on the second replication.] I apprehend that it is now established by the law of this country that one who be- comes a shareholder in a foreign company, and therefore and thereby 1 Ace. Bank of Australasia v. Harding, 9 C. B. 661 ; Bank of Australasia v. Nias> 16 Q. B. 717. — Ed. 2 Part of this opinion is omitted. — Ed. SECT. II.] EX FARTE BLAIN. 351 a member of that company, — such company existing in a foreign country, and subject in all things to the law of that country, — himself becomes subject to the law of that country, and to the articles or con- stitutions of that company construed and interpreted according to the law of that country in all things, and as to all matters and all questions existing or arising in relation to or connected with the acts and affairs and the rights and liabilities of such company and its members sever- ally and collectively ; and if that company, by the law of the country in which it exists, or by the articles of its constitution, is subject to the jurisdiction of a particular court within that country, so also is each shareholder or member subject to its jurisdiction in all cases in relation to or connected with such company . Ex parte BLAIN. Court of Appeal. 1879. [Reported 12 Chancery Division, 522.] This was an appeal from a decision of Mr. Register Pepys, acting as Chief Judge in Bankruptcy. James Sawers, of Liverpool, and six other persons, traded at Liver- pool and in London under the firm of James Sawers & Co., and at Valparaiso and other places in South America under the firm of Sawers, Woodgate, & Co. The principal place of business of the firm in England was at Liverpool. Two of the partners were Chilian subjects, domiciled and permanently resident in Chili, and they had never been in England or in any part of Great Britain. On the 16th of December, 1878, William Blain commenced an action in the Queen's Bench Division against the firm of James Sawers & Co., in respect of a debt of £2,500 contracted by the firm in England. The writ was served the same day on James Sawers personally, at the place of business of the firm in Liverpool. It was not served on any of the other partners. On the 24th of January, 1879, the defendants not having appeared to the writ, judgment for £2,500 and costs was entered for the plaintiff against the defendant firm. A writ of fi. fa. was issued upon the judgment, under which the sheriff seized goods of the firm at Liverpool and sold them on the 29th of January, 1879. On the same day the plaintiff presented a bankruptcy petition in the London court against all the members of the firm of James Sawers & Co., alleging that the levy of the exe- cution by seizure and sale was an act of bankruptcy committed by them. An ex parte, order was made, under rule 66 of the Bank- ruptcy Rules, 1870, giving the petitioning creditor leave to serve the petition on the two Chilian partners in Chili. Before the hearing of the petition as against them they appeared under protest, not submit- 352 EX PARTE BLAIN. [CHAP. TIL ting to the jurisdiction of the court, and asked that the order for service might be discharged, on the ground that the court had no jurisdiction over them. The registrar discharged the order. The petitioning creditor appealed. James, L. J. 1 It appears to me that the registrar's order was per- fectly right. The respondents come here under protest, as they have a perfect right to do, to discharge an order which was made in this country, by a court of this country, on the ground that it is an order which improperly emanated, and they ask to have the order dis- charged, so that they may never be embarrassed, or be liable to be embarrassed, by the fact of such an order having been issued. It appears to me that the whole question is governed by the broad, general, universal principle that English legislation, unless the con- trary is expressly enacted or so plainly implied as to make it the duty of an English court to give effect to an English statute, is applicable only to English subjects or to foreigners, who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction. Every foreigner who comes into this country, for however limited a time, is, during his residence here within the allegiance of the sovereign, entitled to the protection of the sovereign and subject to all the laws of the sovereign. But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation. English legislation has said that, if a debtor allows his goods to be taken in execution, certain consequences shall follow, and English legislation has a right to say that with regard to an English subject. But what right has it to say so with regard to a Chilian? No doubt it has a right to say to a Chilian, or to any other foreigner, " If you make a contract in England, or commit a breach of a contract in England, under a particular act of Parliament a particular procedure may be taken by which we can effectually try the question of that contract, or that breach, and give execution against any property of yours in this country." But that is because the property is within the pro- tection and subject to the powers of the English law. To what extent the decision of such a question would be recognized abroad remains to be considered, and must be determined by the tribunals abroad. If a foreigner, being served with a writ under the provi- sions of the Judicature Act, did not choose to appear, and the legis- lature said, " If you do not appear you will commit a default in that way, and we will give judgment against you," whether that judg- ment would, under such circumstances, be recognized by foreign tribunals, as being consistent with international law and the general 1 Arguments of counsel and the concurring opinions of Brett and Cottov, L.JJ., are omitted. — Ed. SECT. II.] EX PARTE BLAIN. 353 principles of justice, is a matter which must be determined by them. But we have to consider a matter, not of British, but of peculiarly English legislation, because the Bankruptcy Act is confined to Eng- land, and does not extend to Scotland or Ireland, except in certain cases expressly provided for, and I believe it does not extend to the colonies. And we have to deal with the case of a Chilian who says, " I am a Chilian, and I wish to be a Chilian; I have never made myself subject to English legislation or English tribunals. I do not wish to come here to be made a bankrupt." It seems to me he has a right to say that. As I happen to know, there is in the Sand- wich Islands a code of bankruptcy, which was introduced by Kame- hameha II., and I think it would be monstrous if an English merchant of Liverpool, having business transactions in the Sandwich Islands, was summoned by the court there to appear in a bankruptcy proceeding at Honolulu. It is not consistent with ordinary princi- ples of justice or the comity of nations that the legislature of one country should call on the subject of another country to appear before its tribunals when he has never been within their jurisdiction. Of course, if a foreigner has come into this country and has committed an act of bankruptcy here, he is liable to the consequences of what he has done here; but. in the absence of express legislative provi- sion, compelling me to say that the legislature has done that which, in my opinion, would be a violation of international law, I respect- fully decline to hold that it has done anything of the kind. I therefore entirely agree with the decision of the registrar, that the order for service ought to be discharged. The other ground on which he put his decision would, I think, be sufficient, namely, that the whole of the provisions of the Bankruptcy Act with regard to acts of bankruptcy proceed on the commission of some act or default by the debtor. Sect. 6 begins with saying that the following "acts or defaults " are to be included under the expression "acts of bank- ruptcy," and the registrar was of opinion that it would be impossible to say that these Chilian subjects had been guilty of any default. I do not at all differ from him in that conclusion. 1 i Ace. In re Pearson, [1892] 2 Q. P>. 263 ; In re A. B. k Co., [1900] 1 Q. B. 541. In the latter case LlNDLET, M. K., said : " Bankruptcy is a very serious matter. It alters the status of the bankrupt. This cannot be overlooked or forgotten when we are dealing with foreigners, who are not subject to our jurisdiction. What authority or right has the court to alter in this way the status of foreigners, who are not subject to our jurisdiction ? If Parliament had conferred this power in express words, then of course the court would be bound to exercise it. Bat the decisions go to this ex- tent, and rightly, I think, in principle, that unless Parliament has conferred upon the court that power in language which is unmistakable, the court is not to assume that Parliament intended to do that which might so seriously affect foreigners who are not resident here, and might give offence to foreign governments." — En. 23 354 G. AND B. SEWING MACHINE CO. V. RADCLIFFE. [CHAP. III. GROVER AND BAKER SEWING MACHINE CO. v. RADCLIFFE. Supreme Court of the United States. 1890. [Reported 137 United States, 287.] Error to the Court of Appeals of the State of Maryland. This was an action brought in the Circuit Court of Cecil County, Maryland, by the Grover and Baker Sewing Machine Company against Jainea and John Benge, citizens of Delaware, by summons and attachment served on William P. Radcliffe as garnishee. The suit was upon a judgment for the sum of three thousand dollars, entered by the prothonotary of the Court of Common Pleas in and for the county of Chester, Pennsylvania, against James and John Benge (who were not citizens or residents of Pennsylvania and were not served with process) upon a bond signed by them, giving author- ity to "any attorney of any court of record in the State of New York or any other State " to confess judgment against them for the amount of the bond. The law of Pennsylvania authorized the prothonotary of any court to enter judgment upon such a bond. 1 Fuller, C. J. The Maryland Circuit Court arrived at its conclu- sion upon the ground that the statute of Pennsylvania relied on did not authorize the prothonotary of the Court of Common Pleas of that State to enter the judgment; and the Court of Appeals of Maryland reached the same result upon the ground that the judgment was void as against John Benge, because the court rendering it had acquired no jurisdiction over his person. It i3 settled that notwithstanding the provision of the Constitution of the United States, which declares that "full faith and credit shall be given in each State to the public acts, records, and judicial pro- ceedings of every other State," Art. IV., section I, and the acts of Congress passed in pursuance thereof, 1 Stat. 22, Rev. Stat. § 905 — and notwithstanding the averments in the record of the judgment itself, the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding; that the jurisdiction of a foreign court over the person or the subject-matter, embraced in the judgment or decree of such court, is always open to inquiry; that, in this respect, a court of another State is to be regarded as a foreign court; and that a personal judgment is without validity if rendered by a State court in an action upon a money demand against a non-resident of the State, upon whom no personal service of process within the State was made, and who did not appear. D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457; Hall v. Lanning, 91 U. S. 160; Pennoyer v. Neff r 95 U. S. 714. i This statement is abridged from the statement of Fuller, C. J. — Ed. SECT. II.] G. AND B. SEWING MACHINE CO. V. KADCLIFFE. 355 The rule is not otherwise in the State of Pennsylvania, where the judgment in question was rendered; Guthrie v. Lowry, 84 Penn. St. 533; Scott v. Noble, 72 Penn. St. 115; Noble v. Thompson Oil Co., 79 Penn. St. 354; Steel v. Smith, 7 W. & S. 447; nor in the State of Maryland, where the action under review was brought upon it; Bank of the United States v. Merchants' Bank, 7 Gill, 415; Clark v. Bryan, 16 Maryland, 171; Weaver v. Boggs, 38 Maryland, 255. And the distinction between the validity of a judgment rendered in one State, under its local laws upon the subject, and its validity in another State, is recognized by the highest tribunals of each of these States. Thus in Steel v. Smith, 7 W. & S. 447, it was decided, in 1844, that a judgment of a court of another State does not bind the person of the defendant, in another jurisdiction, though it might do so under the laws of the State in which the action was brought, and that the act of Congress does not preclude inquiry into the jurisdic- tion, or the right of the State to confer it. The action was brought on a judgment rendered in Louisiana, and Mr. Chief Justice Gibson, in delivering the opinion of the court, said: "The record shows that there was service on one of the joint owners, which, in the estima- tion of the law of the court, is service on all ; for it is affirmed in Hill v. Bowman, already quoted [14 La. 445], that the State of Louisiana holds all persons amenable to the process of her courts, whether citizens or aliens, and whether present or absent. It was ruled in George v. Fitzgerald, 12 La. 604, that a defendant, though he reside in another State, having neither domicile, interest nor agent in Louisiana, and having never been within its territorial limits, may yet be sued iu its courts by the instrumentality of a curator appointed by the court to represent and defend him. All this is clear enough, as well as that there was in this instance a general appearance by attorney, and a judgment against all the defendants, which would have full faith and credit given to it in the courts of the State. But that a judgment is always regular when there has been an appearance by attorney, with or without warrant, and that it cannot be impeached collaterally, for anything but fraud or collusion, is a municipal principle, and not an international one having place in a question of State jurisdiction or sovereignty. Now, though the courts of Louisiana would enforce this judgment against the persons of the defendants, if found within reach of then- process, yet, where there is an attempt to enforce it by the process of another State, it behooves the court whose assistance is invoked to look narrowly into the constitutional injunction, and «ive the statute to carry it out a reasonable interpretation." pp. 449, 450. Referring to § 1307 of Mr. Justice Story's Commentaries on the Constitution, and the cases cited, to which he added Benton v. Burgot, 10 S. & R. 240, the learned Judge inquired: "What, then, is the right of a State to exercise authority over the persons of those 356 G. AND B. SEWING MACHINE CO. V. RADCLIFFE. [CHAP. IIL who belong to another jurisdiction, and who have perhaps not been out of the boundaries of it?" (p. 450) and quoted from Vattel, Burge, and from Mr. Justice Story (Conflict of Laws, c. 14, § 53 1 Arguments of counsel and part of the dissenting opinion are omitted. Ed 382 PENNOYER V. NEFF. [CHAP. III. established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plain- tiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudi- cation, but only in enforcement of a personal judgment, having no rela- tion to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judg- ment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved. There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are of opinion that inasmuch as the statute requires, for an order of publica- tion, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advan- tage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring proof of the publication in a newspaper to be made by the " affidavit of the printer, or his foreman, or his principal clerk," is satisfied when the affidavit is made by the editor of the paper. The term " printer," in their judgment, is there used not to indicate the person who sets up the type — he does not usually have a foreman or clerks ; it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case, — observing that, for the purpose of making the required proof, publishers were " within the spirit of the statute." Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a "pub- lisher and proprietor " was sufficient. Sharp v. Daugney, 33 Cal. 512. The term " editor," as used when the statute of New York was passed, from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the definitions of an editor, a person "who superintends the publication of a newspaper." It is principally since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession. If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be unable to uphold its decision. But it was also contended in that court, and is insisted SECT. III. J PENNOYEK V. NEFF. 3S3 upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his ap- pearance in the action in which it was rendered, and that the premises in controversy could not be subjected to the payment of the demand of a resident creditor except by a proceeding in rem; that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent from the reasons upon which it was made. And that the}- are sound would seem to follow from two well-established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Consti- tution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the prin- ciples of public law to which we have referred are applicable to them. One of these principles is, that every State possesses exclusive juris- diction and sovereignty over persons and property within its territory. As a consequence every State has the power to determine for itself the civil status and capacities of its inhabitants ; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obligations enforced ; and also to regulate the manner and conditions upon which property situated within such territory, both personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one men- tioned ; that is, that no State can exercise direct jurisdiction and au- thority over persons or property without its territory. Story, Conll. Laws, c. 2 ; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity ; and that no tribunal established by it can extend its process beyond that terri- tory so as to subject either persons or property to its decisions. " Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding such persons or property in any other tribunals." Story, Confl. Laws, sect. 539. But as contracts made in one State may be enforceable only in an- other State, and property may be held by non-residents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken ; whilst any direct exertion of authority upon them. 384 PENNOYER V. NEFF. ["CHAP. III. in an attempt to give exterritorial operation to its laws, or to enforce an exterritorial jurisdiction by its tribunals, would be deemed an en- croachment upon the independence of the State in which the persous are domiciled or the property is situated, and be resisted as usurpation. Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with ; and the exercise of this jurisdiction in no manner in- terferes with the supreme control over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25 ; Corbett v. Nutt, 10 Wall. 464. So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them ; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens ; and when non-residents deal with them, it is a legitimate and just exer- cise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizeus. It is in virtue of the State's jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident's obliga- tions to its own citizeus, and the inquiry can then be carried onl} r to the extent necessary to control the disposition of the property. If the non-resident have no propertj- in the State, there is nothing upon which the tribunals can adjudicate. These views are not new. The}' have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mason, 35, Mr. Justice Ston r said : — " Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him. Where he is not within such territoiy, and is not personally subject to its laws, if, on account of his supposed or actual property being within the territoiy, process b} T the local laws may, by attachment, go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in per- sonam, for the plain reason that, except so far as the property is con- cerned, it is a judgment coram non judice." And in BoswelPs Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a sheriff's sale, under a money decree rendered upon publication of notice against non-residents, in a suit brought to enforce a contract relating to land, Mr. Justice McLean said : — SECT. III.] PENNOYER V. NEFF. 385 " Jurisdiction is acquired in one of two modes : first, as against the person of the defendant by the service of process ; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound bv the judgment beyond the property in question. And it is imma- terial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem" These citations are not made as authoritative expositions of the law ; for the language was perhaps not essential to the decision of the cases in which it was used, but as expressions of the opinion of eminent jurists. But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the disposition of the case to declare the effect of a personal action against an absent party, without the jurisdiction of the court, not served with process or voluntarily submitting to the tribunal, when it was sought to subject his property to the payment of a demand of a resident complainant ; and in the opinion there delivered we have a clear statement of the law as to the efficacy of such actions, and the jurisdiction of the court over them. In that case, the action was for damages for alleged false imprisonment of the plaintiff ; and upon his affidavit that the defendants had fled from the State, or had absconded or concealed themselves so that the ordinary process of law could not reach them, a writ of attachment was sued out against their property. Publication was ordered by the court, giving notice to them to appear and plead, answer or demur, or that the action would be taken as confessed and proceeded in ex parte as to them. Publication was had ; but they made default, and judgment was entered against them, and the attached property was sold under it. The purchaser having been put into pos- session of the property, the original owner brought ejectment for its recovery. In considering the character of the proceeding, the court, speaking through Mr. Justice Miller, said : — " Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and subject his property lying within the territorial jurisdiction of the court to the pay- ment of that demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within the terri- torial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that, upon affi- davit being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may 1><- established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its 25 386 PENNOYER V. NEFF. [CHAP. IIL essential nature a proceeding in rem ; the only effect of which is to sub- ject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases is clearly evinced by- two well- established propositions. First, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other ; nor can it be used as evidence in any other proceeding not affecting the attached property ; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court, in such a suit, cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court." The fact that the defendants in that case had fled from the State, or had concealed themselves, so as not to be reached by the ordinary pro- cess of the court, and were not non-residents, was not made a point in the decision. The opinion treated them as being without the territorial jurisdiction of the court; and the grounds and extent of its authority over persons and property thus situated were considered, when they were not brought within its jurisdiction by personal service or voluntary appearance. The writer of the present opinion considered that some of the objec- tions to the preliminary proceedings in the attachment suit were well taken, and therefore dissented from the judgment of tire court ; but to the doctrine declared in the above citation he agreed, and he may add, that it received the approval of all the judges. It is the only doctrine consistent with proper protection to citizens of other States. If, with- out personal service, judgments in personam, obtained ex parte against aon-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the trans- actions upon which they were founded, if they ever had any existence, had perished. Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent ; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings SECT. III.] PENNOYER V. NEFF. 387 authorized by law upon such seizure lor its condemnation and sale. Such service ma}" also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some in- terest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceed- ings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the 6uit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tri- bunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability. The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below ; but the position is assumed, that, where they have property within the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards ap- plied by its judgment to the satisfaction of demands against its owner ; or such demands be first established in a personal action, and the prop- erty of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction of the court to inquire into and determine his obli- gations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the sub- sequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment, if void when rendered, will always remain void ; it cannot occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the non-resident defendant pos- sessed property in the State at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the de- fendant had or had not disposed of the property. If before the levy the property should be sold, then, according to this position, the judg- ment would not be binding. This doctrine would introduce a new ele- ment of uncertainty in judicial proceedings. The contrary is tlio law. The validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. In 388 PENNOYER V. NEFF. [CHAP. III. Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to laud sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territory, without service of process ; and the court said : — "These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom pro- cess has not been served, or whose property has not been attached. In this case, there was no personal notice, nor an attachment or other pro- ceeding against the land, until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which the land was sold." The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntary ap- pearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have been made to enforce such judgments in States other than those in which they were rendered, under the provision of the Constitution requiring that " full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; " and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated, " they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which the}' are or shall be taken." In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the act applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the juris- diction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject- matter. M'Elmovle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, against two joint debtors, only one of whom had been served with process, the other being a non-resident of the State. The Circuit Court held the judgment conclusive and binding upon the non- resident not served with process ; but this court reversed its decision, observing, that it was a familiar rule that countries foreign to our own disregarded a judgment merely against the person, where the defendant had not been served with process nor had a day in court ; that national comity was never thus extended ; that the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse ; that no faith and credit or force and effect had been given to such judgments SECT. III.] PENNOTEB V. NEFF. 389 by any State of the Union, so far as known ; and that the State courts had uniformly, and in many instances, held them to be void. l *The international law,"' said the court, " as it existed among the States in 1790, was, that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State when the defendant had not been served with process or voluntarily made defence ; because neither the legislative jurisdiction nor that of courts of justice had binding force." And the court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine of this court is, that the act " was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another." The Lafayette Insurance Co. v. French et al., 18 How. 404. This whole subject has been very fully and learnedly considered in the recent case of Thompson y. Whitman, 18 Wall. 457, where all the authorities are carefully reviewed and distinguished ; and the conclu- sion above stated is not only reaffirmed, but the doctrine is asserted, that the record of a judgment rendered in another State may be con- tradicted as to the facts necessary to give the court jurisdiction against its recital of their existence. In all the cases brought in the State aud Federal courts, where attempts have been made under the act of Con- gress to ,give effect in one State to personal judgments rendered in another State against non-residents, without service upon them, or upon substituted service by publication, or in some other form, it has been held, without an exception, so far as we are aware, that such judgments were without any binding force, except as to property, or interests in property, within the State, to reach and affect which was the object of the action in which the judgment was rendered, and which property was brought under control of the court in connection with the process against the person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was not obtained, and the party did not voluntarily appear, as effectual and binding merely as a proceeding in rem. and as having no operation beyond the disposition of the property, or some interest therein. And the reason assigned for this conclusion has been that which we have already stated, that the tribunals of one State have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property within its limits. In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as 1813, the law is stated substantially in conformity with these views. In that case, the court considered at length the effect of the constitutional provision, and the act of Congress mentioned ; and after stating that, in order to entitle the judgment ren- dered in any court of the United States to the full faith and credit 390 PENNOYER V. NEFF. [CHAP. III. mentioned in the Constitution, the court must have had jurisdiction not only of the cause, but of the parties, it proceeded to illustrate its posi- tion by observing, that, where a debtor living in one State has goods, effects, and credits in another, his creditor living in the other State may have the property attached pursuant to its laws, and, on recovering judgment, have the property applied to its satisfaction ; and that the party in whose hands the property was would be protected by the judg- ment in the State of the debtor against a suit for it, because the court rendering the judgment had jurisdiction to that extent ; but that if the property° attached were insufficient to satisfy the judgment, and the creditor should sue on that judgment in the State of the debtor, he would fail, because the defendant was not amenable to the court ren- dering the judgment. In other words, it was held that over the prop- erty within the State the court had jurisdiction by the attachment, but had none over his person ; and that any determination of his liability, except so far as was necessary for the disposition of the property, was invalid. 1 In Kilbourn v. Woodworth, 5 Johns. (1ST. Y.) 37, an action of debt was brought in New York upon a personal judgment recovered in Massachusetts. The defendant in that judgment was not served with process ; and the suit was commenced by the attachment of a bedstead belonging to the defendant, accompanied with a summons to appear, served on his wife after she had left her place in Massachusetts. The court held that the attachment bound only the property attached as a proceeding in rem. and that it could not bind the defendant, observing, that to bind a defendant personally, when he was never personally summoned or had notice of the proceeding, would be contrary to the first principles of justice, repeating the language in that respect of Chief Justice De Grey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns. (N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al, 14 How. 334. To the same purport decisions are found in all the State courts. In several of the cases, the decision has been accompanied with the observation that a personal judgment thus recovered has no binding force without the State in which it is rendered, implying that in such State it may be valid and binding. But if the court has no jurisdiction over the person of the defendant by reason of his non-residence, and, consequently, no authority to pass upon his personal rights and obligations ; if the whole proceeding, without service upon him or his appearance, is coram non judice and void ; if to hold a defendant bound by such a judgment is contrary to the first principles of justice, — it is difficult to see how the judgment can legitimately have any force within the State. The lan- guage used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within i Ace. Freeman v. Alderson, 119 U. S. 185 ; McVicar v. Beedy, 31 Me. 314 : Eliot t;. McCormick, 144 Mass. 10 ; Arndt v. Arndt, 15 Ohio, 33 ; Jones v. Spencer, 15 Wis. 583. See Melhop v. Doane, 31 la. 397.— Ed. SECT. III.] PBNNOYER V. NEFF. 391 the State where rendered ; and that, therefore, it could be called in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullit}', because rendered without any jurisdiction of the tribunal over the part}', is not entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465 ; Mitchell's Administrator v. Gray, 18 Ind. 123. Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals of a different sovereignty, exer- cising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them. Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that pro- ceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permis- sible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity", there must be a tribunal competent by its constitution — that is, b}' the law of its creation — to pass upon the subject-matter of the suit ; and if that involves merely a determination of the personal liability of the defend- ant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted ser- vice of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought against non- residents, is effectual onl}' where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by pro- cess adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein ; in other words, where the action is in the nature of a proceeding in run. As stated by Cooley in his Treatise on Constitutional Limitations, 405, 392 PENNOYER V. NEFF. [CHAP. III. for any other purpose than to subject the property of a non-resident to valid claims against him in the State, "due process of law would re- quire appearance or personal service before the defendant could be personally bound by any judgment rendered." It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants ; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or insti- tuted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially pro- ceedings in rem in the broader sense which we have mentioned. It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the State creating the tribunal may provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations et al. v. Johnson et al., 24 How. 195. It follows from the views expressed that the personal judgment re- covered in the State court of Oregon against the plaintiff herein, then a non-resident of the State, was without any validity, and did not au- thorize a sale of the property in controversy. To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. The jurisdiction which every State possesses to determine the civil status and capacities of all its in- habitants involves authority to prescribe the conditions on which pro- ceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a disso- lution may be granted, may have removed to a State where no dissolu- tion is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant ; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156. Neither do we mean to assert that a State may not require a non- SECT. III.] PENNOYER I'. NEFF. 393 resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representa- tive in the State to receive service of process and notice in legal pro- ceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, "It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them." See also The Lafayette Insurance Co. i*. French et al., 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than per- sonal service upon their officers or members. Parties becoming mem- bers of such corporations or institutions would hold their interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345. In the present case there is no feature of this kind, and, conse- quently, no consideration of what would be the effect of such legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money judgment rendered in one State, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein. Judgment affirmed. Hunt, J., dissenting. I am compelled to dissent from the opinion and judgment of the court, and, deeming the question involved to be important, I take leave to record my views upon it. . . . It is said that the case where a preliminary seizure has been made, and jurisdiction thereby conferred, differs from that where the property is seized at the end of the action, in this : In the first case, the prop- erty is supposed to be so near to its owner, that, if seizure is made of it, he will be aware of the fact, and have his opportunity to defend, and jurisdiction of the person is thus obtained. This, however, is matter of discretion and of judgment only. Such seizure is not in itself notice to the defendant, and it is not certain that he will by that means re- ceive notice. Adopted as a means of communicating it, and although a very good means, it is not the only one, nor necessarily better than a publication of the pendency of tin' suit,, made with an honest intention 394 WOODRUFF V. TAYLOR. L CHAR IIL to reach the debtor. Who shall assume to say to the legislature, that if it authorizes a particular mode of giving notice to a debtor, its action may be sustained, but if it adopts any or all others, its action is uncon- stitutional and void? The rule is universal, that modes, means, ques- tions of expediency or necessity, are exclusively within the judgment of the legislature, and that the judiciary cannot review them. This has been so held in relation to a bank of the United States, to the legal-tender act, and to cases arising under other provisions of the Constitution. In Jarvis v. Barrett, 14 Wis. 591, such is the holding. The court say : — " The essential fact on which the publication is made to depend is property of the defendant in the State, and not whether it has been attached. . . . There is no magic about the writ [of attachment] which should make it the exclusive remedy. The same legislative power which devised it can devise some other, and declare that it shall have the same force and effect. The particular means to be used are always within the control of the legislature, so that the end be not beyond the scope of legislative power." If the legislature shall think that publication and deposit in the post- office are likely to give the notice, there seems to be nothing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be thus controlled. That a State can subject land within its limits belonging to non- resident owners to debts due to its own citizens as it can legislate upon all other local matters ; that it can prescribe the mode and process by which it is to be reached, — seems to me very plain. I am not willing to declare that a sovereign State cannot subject the land within its limits to the payment of debts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at the commencement of the suit or at its termination. This is a matter of detail ; and I am of opinion that if reasonable notice be given, with an opportunity to defend when appearance is made, the question of power will be fully satisfied. WOODRUFF v. TAYLOR. Supreme Court of Vermont. 1847. [Reported 20 Vermont, 65.] Trespass for taking certain personal property. The defendant pleaded the general issue, and also pleaded two pleas in bar; which were, in substance, that he commenced a suit against one Phelps Smith in the Court of King's Bench in the District of Montreal, in Lower Canada, and caused his process to be served by arresting the SECT. III.] WOODRUFF V. TAYLOR. 39£ body of Smith; that in October, 18-12, he recovered judgment against Smith, in the suit for £26 15s. 9d., debt, and £56 4s. 2d., costs; that in June, 1843, he took out a writ of fieri facias, upon the judgment, against the goods of Smith, and placed the same in the hands of the sheriff's bailiff for service; that on the 13th of June, 1843, the goods described in the plaintiff's declaration being in the possession of Smith at Stanbridge in Lower Canada, the defendant turned them out to the bailiff, in the presence of one Hoyle, Recors, and the bailiff levied on the same as the property of Smith; that, after giviug public notice of the time and place of sale, at the doors of two churches, on Sunday, June 18, and by posting up notices of the sale at the doors of the churches, the bailiff, on the 26th of June, sold the prop- erty, in the presence of the said Recors and others, to the highest bidder for £32 Is. 3d. ; that at the October Term of the Court of King's Bench the sheriff returned they?, fa. into court, together with the money received thereon, excepting £8 2s. Id. for the bailiff's costs; that then one Johnson appeared in court and claimed to be a creditor of Smith and demanded a ratable division, with the other creditors of Smith, of the money paid into court, that thereupon the court ordered the money in court to be distributed as follows, — to the crier and tipstaff £5 Is. 6c7. , to Taylor, the plaintiff in that suit and defendant here, £11 5s. 5cZ., and to Johnson £7 lis. Id., — being the whole of the proceeds of the sale, that had been paid into court; and that the said judgment still remains in full force. And the defendant averred that during the time of all these proceedings, and until the time of pleading, there was a custom and law of the said province of Lower Canada, that the proceeds of the sale of goods so levied upon should be distributed, in manner aforesaid, among creditors appearing in court and claiming distribution, and farther, that by the custom and law of said province all persons hav- ing claim in any way or manner to the property so levied upon and sold on execution, are permitted to enter their appearance in court, when the proceeds of the sale are returned, "and if any person hav- ing such claim, neglect to enter his said appearance and make and prosecute his said claim, judgment of distribution is to be made by the court of the money so paid in, in manner and form aforesaid, and the said judgment for debt, or damages, and costs and the final distribution, as aforesaid, is conclusive, both as to the title of said ffoods and the amount of said damages and costs, and that the same is a bar, against all persons, to any and all actions founded upon any title, interest, claim, or possession in or to such goods." To this plea the plaintiff replied, alleging that the property in the goods was in himself, and not in Phelps Smith, and averring that, during all the period of said proceedings, he was a citizen and resident of the United States, and cot a resident or citizen of Canada, nor sub- ject to the laws of that province, and thai he had do notice of such proceedings, or any of them. To this replication the defendant de- 396 WOODRUFF V. TAYLOR. [CHAP. III. murred. The county court adjudged the replication insufficient, and rendered judgment for the defendant. Exceptions by plaintiff. 1 Hall, J. A second argument having been directed in this case, it has perhaps assumed an importance iu the eyes of counsel, which its intrinsic difficulties may not seem to warrant; but which may, nevertheless, justify a more extended opinion than would otherwise have been deemed necessary. The question raised by the pleadings is, what is to be the effect of the proceedings in the King's Bench in Canada upon one not per- sonally amenable to its tribunal, — when those proceedings are used here, in another and foreign jurisdiction? It is insisted, in behalf of the defendant, that the record pleaded, in connection with the custom and law of Canada set forth in the plea, is to be considered as conclusive evidence, that the matter now in controversy between the plaintiff and defendant has been adjudicated by a competent tribunal, and that therefore the plea is a good bar to the action. This renders it necessary to inquire into the nature of those pro- ceedings, in reference to their sufficiency to constitute a record of estoppel. Judgments, in regard to their conclusive effects as estoppels, are of two classes; — judgments in personam and judgments in rem. The judgment pleaded in this case cannot be supported as a judg- ment in personam, because the court rendering it had no jurisdiction of the person of the plaintiff, he being a citizen of another govern- ment and having no notice of the suit. As a proceeding against his person, the judgment was coram non judice, a mere nullity. This is too plain to need argument, and is, indeed, conceded by the counsel for the defendant, who insist that it is an estoppel as a proceeding in rem, — that although not binding on the person, it is binding on the property in controversy and concludes its title. A judgment in rem I understand to be an adjudication, pronounced upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is, in form as well as substance, between the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record and those claiming by them. A judgment in rem is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject-matter itself, whose state, or condition, is to be determined. It is a pro- ceeding to determine the state, or condition, of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be. The probate of a will I conceive to be a familiar instance of a proceeding in rem in this State. The proceeding is, in form and 1 Arguments of counsel are omitted. — En. SECT. III.] WOODRUFF V. TAYLOR. 397 substance, upon the will itself. No process is issued against any one; but all persons interested in determining the state, or condi- tion, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or do any particular act, but that the instrument is, or is not, the will of the testator. It determines the status of the subject-matter of the pro- ceeding. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within this State is concerned), just what the judgment declares it to be. This is one instance of a proceeding upon a written instrument, to determine its state, or condition ; and that determination, in its consequences, involves and incidentally determines the rights of individuals to property affected by it. But proceedings in rem may be and often are upon personal chattels, directly declaring the right to them. In such cases the proceeding is for the supposed violation by the property, so to speak, of some public or municipal law, or regulation, by which it is alleged the title of the former owner has become divested. The property being seized, a proceeding is then instituted against it, upon an allegation stating the cause for which it has become forfeited; upon which public notice is given, in some prescribed form, to all persons to appear and contest the allegation. It is by no means certain, that all persons having an interest, in the property have actual notice of the proceeding; but if the thing itself, upon which the proceeding is had, be within the jurisdiction of the court, all persons interested are held to have constructive notice; and the sentence, or decree, of the court, declaring the state, or condition, of the property, is held to be conclusive upon all the world. A sale of the property, under such sentence, passes the right absolutely; and farther, in the case of judgments of courts of admiralty, they are also held to be conclusive evidence of the facts stated in the decree to have been found by the court, as the basis of the decree. And perhaps the judgments of municipal courts, acting in rem, within the sphere of their jurisdic- tion, would have the same effect. These proceedings that have been mentioned are purely in rem. But, besides these, there is another class of cases, which may per- haps be considered, to some extent, proceedings in rem, though in form they are proceedings inter partes. An attachment of property in this State, where the court has jurisdiction of the property, but not of the person of the defendant, and a sale of it (or a levy upon it, if it be real estate), on execution, is in the nature of a proceed- ing in rem. The judgment, if the defendant have no notice, would be treated as a nullity out of our jurisdiction, so far as the person of the defendant was concerned; though it would be held binding, as between the parties, so far as regarded the property, as a pro- 398 WOODKUFF V. TAYLOR. [CHAP. III. ceeding in rem. The defendant would not, I apprehend, be allowed to recover back his property in another jurisdiction. The status of the property, as between the plaintiff and defendant, would be held to have been determined by the proceeding. But the proceeding would not in any way affect the status of the property as to any other persons than the parties to the record and those claiming by them. Our proceeding of foreign attachment partakes, perhaps still more, of the nature of a proceeding in rem ; but its operation as such is also of a limited character. The suit is inter partes, and, as a pro- ceeding in rem, it must be confined to such parties. A process is issued in favor of a plaintiff, declaring against his debtor residing in another government, and alleging, also, that another person here, named in the process and styled a trustee, has goods in his hands belonging to the plaintiff's debtor, or is indebted to him, and pray- ing that the goods or debt found here may be declared forfeited to the plaintiff, or, in other words, that the property here may be applied in payment of the plaintiff's demand. I conceive the court here has jurisdiction of the property in the hands of the trustee, or the debt due from him, — it being found in our jurisdiction, — and that the court may proceed upon it in rem. After publication, by which the debtor is constructively notified of the proceeding against his property, the court adjudicates upon the property and declares that it shall be delivered, or paid, to the plaintiff, to be applied upon his debt. I think such adjudication changes the status of the prop- erty, or debt, and deprives the principal debtor of all title to it; that such adjudication should be held binding and conclusive upon all the parties to the proceeding; that the foreign creditor of the trustee, having placed his property, or his credit, within this juris- diction, should be bound by its forfeiture, declared by our courts; and that he should be barred, in any other jurisdiction, from prose- cuting his claim against the trustee. But the operation of this pro- ceeding in rem must be limited to the parties to it, and cannot in any manner affect the right or interest of any other person, having an independent and adverse claim to the goods, or debt, which was the subject-matter of the suit. The court does not pretend to notify such adverse claimant, either constructively, or otherwise; nor does the proceeding profess to determine the rights of any other persons than those who are parties of record to it; and it can, consequently, affect the rights of no other persons. The distinction between proceedings purely in rem and those of a limited character, which have been mentioned, I think is strongly and plainly marked. The object and purpose of a proceeding purely in rem is to ascertain the right of every possible claimant; and it is instituted on an allegation, that the title of the former owner, who- ever he may be, has become divested; and notice of the proceeding is given to the whole world to appear and make claim to it. From SECT. III.] WOODRUFF V. TAYLOR. 399 the nature of the case the notice is constructive, only, as to the greater part of the world; but it is such as the law presumes will be most likely to reach the persons interested, and such as does, in point of fact, generally reach them. In the case of a seizure for the viola- tion of our revenue laws, the substance of the libel, which states the ground on which the forfeiture is claimed, with the order of the court thereon, specifying the time and place of trial, is to be published in a newspaper, and posted up a certain number of days; and proclama- tion is also made in court for all persons interested to appear and contest the forfeiture. And in every court and in all countries, whose judgments are respected, notice of some kind is given. It is, indeed, as I apprehend, just as essential to the validity of a judg- ment in rem, that constructive notice, at least, should appear to have been given, as that actual notice should appear upon the record of a judgment in personam. A proceeding professing to determine the right of property where no notice, actual or construc- tive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court. Bradstreet v. Neptune Ins. Co., 3 Sumn. 607. The limited proceedings in rem, before mentioned, are not based on any allegation that the right of property is to be determined between any other persons than the parties to the suit; no notice is sought to be given to any other persons; and the judgment being only as to the status of the property as between the parties of record, it is, as to all others persons, a mere nullity. If we apply these principles to the record pleaded in bar in this case, I think it will be impossible to maintain that, as to the plain- tiff Woodruff, it was a proceeding in rem. There was no allegation that the status of the property, levied upon as the property of Phelps Smith, or the avails of it, when paid into court, was to be adjudi- cated as to him, and there was no notice, actual or constructive, to him to appear and make any claim to it. The judgment was ren- dered in a suit inter partes, in which Taylor was plaintiff and Phelps Smith defendant; and though it bound the property as between them, it could affect the rights of no other person. It is precisely the case of a levy of an execution, in this State, upon personal property, as that of the judgment debtor, of which property some third person claims to be the owner. If such third person were to bring trespass against the judgment creditor for making the levy, I do not perceive why such creditor, with the same propriety as the defendant in this case, might not plead his levy and sale in bar as a proceeding in rem. The record in this case, indeed, shows that the levy was made in the presence of a Recors, which a levy in this State would not; but I apprehend the high standing or otlicial character of the witnesses to a trespass would not purge its illegality, or bar a right of recovery. 400 WOODRUFF V. TAYLOR. [CHAP. III. But the record of the judgment in the King's Bench wholly fails to show that the right of the plaintiff in this suit to the property was attempted to be adjudicated; and there is no averment in the plea that it was adjudicated. The plea states, in substance, that, by the law of Canada, it would have been adjudicated if the plaintiff had appeared in the court and made claim to the property. And by the facts set forth in the plea we are given clearly to understand that it was not adjudicated, because the plaintiff did not so make his claim. It would therefore be impossible to maintain this plea, as furnishing evidence that the matter in controversy is res adjudicata, even if the plaintiff had had notice of the proceeding. If the plea could, under such circumstances, be sustained, even in the courts of Canada, it would not be because the matter had been adjudicated, but because the plaintiff, having neglected to have his claim adju- dicated at the time and in the manner pointed out by the laws of that province, was thereby barred of any other remedy. The plea does not aver that the property of the plaintiff, being found in the possession of Phelps Smith, in Canada, might for that reason, or for any other reason, be legally levied upon and sold as the property of Smith. It in effect admits that the original levy upon the plain- tiff's property was wrongful, but proceeds upon the ground that, by reason of the subsequent proceedings, the wrong cannot now be re- dressed. The original right of action of the plaintiff is conceded, but it is insisted that, by something arising ex post facto, his remedy is gone. It is not a bar to the right that is relied upon, but a bar to the redress. This ground of defence would therefore seem to rest upon a local law of the province of Canada, which affects the plaintiff's remedy only, but which, by the well-settled doctrine of the common law, can be of no avail when a remedy is sought in another jurisdiction. But it is unnecessary to consider farther what might have been the effect of the defendant's plea, if the plaintiff, at the time, had been a resident of Canada; because it seems quite clear that it can have no effect whatever upon the cause of action of one who was, during the whole proceeding, a resident citizen of another govern- ment, not subject to the law of the province, and who had no notice of the proceeding. Story's Confl. of Laws, 487. The result is, that the judgment of the county court is reversed, the replication is held sufficient, and the case is remauded to the county court for the trial of the issue of fact. 1 1 Ace. Putnam v. McDougall, 47 Vt. 478. — Ed. SECT. III.] SUTHERLAND V. SECOND NAT'L BANK OF PEOKIA. 401 SUTHERLAND v. SECOND NATIONAL BANK OF PEORIA. Court of Appeals, Kentucky. 1880. [Reported 78 Kentucky, 250.] Cofer, J. January 2, 1879, the appellant brought this suit in the Louisville Chancery Court against S. C. Bartlett & Co., non-residents of the State, and sued out an attachment against their property. The order of attachment was executed on that day on the Ohio and Missis- sippi Railway Company by delivering a copy thereof to its agent in the city of Louisville, and by summoning the company as a garnishee, but without giving to the company a notice specifying the property attached. January 4 an alias attachment was issued and placed in the hands of the marshal, who, on the 8th, levied it on one car-load of oats in the possession of the Ohio and Mississippi Railway Company. The mar- shal took the oats into his possession, and it was subsequently sold under order of the court. Subsequently the appellee filed its petition, claim- ing that it had a lien on the oats. The pleadings and evidence disclose the following facts : — December 24, 1878, S. C. Bartlett & Co. delivered a car-load of oats to the Peoria, Pekin, and Jacksonville Railroad Company, at Peoria, Illinois, consigned to the appellant at Louisville, and took from the Railroad Company a through bill of lading. They then drew upon the appellant against the shipment, and he declined to honor the draft. Being informed of that fact by telegraph, Bartlett & Co. caused the oats to be stopped in transitu on the second day of January, and on that day surrendered to the railroad company the bill of lading, and took another, consigning the oats to " S. C. Bartlett & Co., notify Verhoff & Strater, Louisville, Ky." They then drew on Verhoff & Strater, and attaching the bill of lading to the draft, on the third of January sold the draft to the appellee, who had no notice of the attachment of the appellant at Louisville. The appellee transmitted the draft to Louisville, but Verhoff & Strater refused to honor it, assigning as a reason that the oats had been attached, and they did not wish to become involved in the controversy. Upon these facts the court below adjudged in favor of the appellee, but allowed the marshal's costs for selling the oats to be deducted from the proceeds, and refused to render judgment against the appellant on a counter-claim for damages for the illegal seizure of the oats. From that judgment both parties appeal. Counsel for the appellant contend that, at the time the second bill of lading was issued, the oats bad passed out of the possession of the Peoria, Pekin and Jacksonville Railroad Company into the possession of the Ohio and Mississippi Company, and therefore the new bill of lad- ing was invalid and ineffectual to invest the bank with a valid lien on the oats. _. 21) 402 SUTHERLAND V. SECOND NAT'L BANK OF PEORIA. [CHAP. III. As authority in support of this position, counsel cites that class of cases in which it has been held that a bill of lading signed by the mas- ter of a vessel before receiving the possession of the goods does not bind the owners. Those cases are not analogous to this. The oats had been received by the railroad company to be forwarded to Louisville, and was in the custody of the Ohio and Mississippi Company when the new bill was signed. The possession of the latter company was held under and by virtue of the contract of affreightment made with the Peoria, Pekin and Jacksonville Company, and the consignors had the same right to change the destination of the oats while in transitu that they would have had if the company receiving the oats from them had had a continuous line to Louisville. There is no question here between the consignor or con- signee and the carrier, and no reason is perceived why the new bill of lading is not valid when called in question between a bona fide holder and one claiming a lien on account of an attachment against the goods of the consignor. The bill of lading authorized the holder to demand the oats from the carrier, and, being a recognized symbol, its delivery to the bank was a symbolic delivery of the oats, and constituted a valid pledge. But it is contended that the service of the first order of attachment on the Ohio and Mississippi Railway Company created a lien on the oats then in its possession, and as that service was prior in time to the pledging of the oats by the delivery of the bill of lading to the bank, the appellant has the eldest and superior lien. At the time the first order of attachment was served, S. C. Bartlett & Co. were non-residents of the State, and the oats was in the State of Illinois. No personal service could be had upon the defendants, nor could the goods be seized under the order of attachment. The con- signors still had the right to stop the oats in transitu, or to alter its destination ; and, in our opinion, the service of the attachment on the railway company while the oats was beyond the limits of this State created no lien. True, the Ohio and Mississippi Railway Company was within the jurisdiction of the court, but the property sought to be reached was without its jurisdiction and the laws of the State, and the process of the courts here could not reach it nor compel the carrier to bring it hither ; and as the court would have had no power to subject the prop- erty unless brought within its jurisdiction, its process could not create a lien upon it until it came within the county where the order of attach- ment was in the hands of the officer. Counsel cite the case of Childs v. Digby (24 Penn. St. 23), in sup- port of a contrary conclusion, but that case was overruled in Pennsyl- vania Railroad Company v. Rennock (51 Penn. St. 244). The alias order of attachment, issued on the fourth of January, was in the officer's hands when the oats arrived in Louisville on the 6th, and was levied on the 8th, and created a valid lien, subject, however, to the prior lien of the bank. SECT. III.] MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. 403 It results from this conclusion that the seizure of the oats under the attachment was wrongful, and as the proceeds were not sufficient to pa}- the debt for which the bank had a lien, the court erred in allowing the marshal's fee to be retained out of the price. He made the seizure and sale at appellant's instance, and must look to him for his costs. The bank had no right to set up a counter-claim in this case for the damages resulting from the seizure of the oats ; but as the judgment dismissing the counter-claim absolutely will be a bar to a suit to recover such damages, the judgment must be reversed on the cross-appeal, and the cause is remanded, with directions to cause the whole proceeds of the sale to be paid over to the bank, and to dismiss the counter-claim without prejudice. 1 MAHR v. NORWICH UNION FIRE INSURANCE SOCIETY. Court of Appeals of New York. 1891. [Reported 127 New York, 452.] Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made July 9, 1889, which affirmed a judgment in favor of plaintiffs, entered upon the decision of the court on trial at Special Term. This was an action by the plaintiffs, claiming to be the equitable owners of a policy of fire insurance, to restrain the insurer from pay- ing the amount of a loss to the insured or to his alleged assignee. On the 21st of April, 1886, the Norwich Union Fire Insurance Society, a corporation organized under the laws of Great Britain, with agencies in New York, Iowa, and other States, issued the policy in question to one Bartlett on his stock of goods at Muscatine, Iowa. The policy was countersigned by the agent of the company at that place. Three days later Bartlett, who resided at Muscatine, sent the policy by mail to the plaintiffs, who resided in the city of New York, as collateral security to a loan of $2,000 concurrently made to him by them. The policy, as written, was payable to Bartlett only, and it was never assigned to the plaintiffs. July 3, 188G, the prop- erty insured was destroyed by fire, and on the sixteenth of August following Bartlett made an absolute assignment of the policy to one Kelly of Muscatine aforesaid. This action was commenced against the insurance company and Bartlett by the due service of process in this State upon the former, i Ace. Western R. R. v. Thornton, 60 Ga. 300 ; Montrose Pickle Co. /•. Dodson, 76 la. 172, 40 N. W. 705 ; Wheal v. 1'. C. A: F. D. R. U., 4 Kan. 370 ; Clark v. Brewer, 6 Gray, 320 ; Bates v. Ry., 60 Wis. 296, 19 N. W. 72. And see Noble v. Thompson Oil Co., 79 Pa. 369. — Ed. 404 MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. [CHAP. Ill, August 12, 1886, aud on the latter about one month later. The com- pany answered, alleging, among other defences, a defect of parties defendant, in that said Kelly, although a necessary party to the action, had not been joined. March 12, 1887, Kelly commenced an action at law in a court of the State of Iowa to recover from the insurance company the sum of $2,000, the amount of the policy, with interest from July 3, 1886. March 15, 1887, on motion of the com- pany, an order was made by the Supreme Court of this State in this action requiring said Kelly to be made a defendant therein, and that he be brought into court by a supplemental summons. A supple- mental summons and complaint were issued accordingly, and the same were served on Kelly in the State of Iowa pursuant to an order of publication based upon an affidavit alleging that "the defendant S. G. Kelly claims to have property in the State of New York, to wit, an interest in the insurance policy" in question. No service was made upon Kelly within this State, and he did not appear in the action. The insurance company, by its answer to the supplemental complaint, pleaded the pendency of the action in the Iowa court; that Kelly was a necessary party, and that the Supreme Court had by its order directed that he be brought in as a party defendant, and demanded judgment that the complaint be dismissed "unless said S. G. Kelly be brought in so as to be bound by any judgment herein." These facts appeared upon the trial of this action, where Kelly's default was noted, and were in substance found by the trial judge, who also found that Kelly had no interest in the policy "superior to that of the plaintiffs; . . . and that the alleged assignment ... by •the defendant Bartlett to said S. G. Kelly, of the date August 16, 1886, . . . was void, and in no wise affected the prior interest obtained by the plaintiffs in said policy on or about the 24th day of April, 1886." Judgmeut was directed restraining the insurance company from paying any money under said policy to Bartlett or Kelly, and although there was neither allegation nor evidence of any proof of loss as required by the terms of the policy, the defendant company was ordered "to pay to the plaintiffs such moneys as shall be found to be payable under and by virtue of " said policy of insurance. Vann, J. Upon the argument of this appeal the learned counsel for the plaintiff, with great fairness, admitted that the Supreme Court never acquired jurisdiction over Kelly, the alleged assignee of the insurance policy that is the subject of this action. The main ques- tion left for decision is whether Kelly was a necessary party, as the defendant company alleged in its answers and urged upon the trial. It is not claimed that he should have been' joined as a plaintiff, but his presence as a defendant is insisted upon as essential to "the complete determination or settlement " of the questions involved. The Code of Civil Procedure provides that "the court may determine SECT. III.] MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. 405 the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in." Code Civ. Pro. § 452. While the statute does not in terms prohibit the court from determining the controversy, unless all the necessary parties are brought iu, that is impliedly com- manded and is the established practice in all equitable actions. Peyser v. Wendt, 87 N. Y. 322; Sherman v. Parish, 53 id. 483; Webster v. Bond, 9 Hun, 437; Shaver v. Brainard, 29 Barb. 25; Sturtevant v. Caldwell, 4 Bosw. G28; Van Epps v. Van Deusen, 4 Paige, 64. It is not enough for the court to direct that the necessary parties be brought in, but it should refuse to proceed to a determination of the controversy, so as to affect their rights until they are in fact brought in. Peyser v. Wendt, supra ; Sherman u. Parish, supra ; Powell v. Finch, *5 Duer, 6GG. The plaintiffs did not appeal from the order of the court requiring Kelly to be brought in and as long as it remained in force it was an adjudication, establishing as the practice, if not the law, of the case that Kelly was a necessary party. Riggs v. Pursell, 74 N. Y. 370. Moreover, the object of this action was to establish the equitable title of the plaintiffs to the policy and to prevent the company from paying the proceeds to any one except themselves. The proceeds, however, were also claimed by Kelly, who not only held the legal title to the policy, but had actually commenced an action upon it against the company in another State. Clearly, the company should not be required to pay the entire amount of the policy both to the plaintiffs and to Kelly, or, without fault on its part, to be placed in a position where it would run any reasonable risk of being compelled to make a double payment. But, how is such a result to be pre- vented when an action at law, brought by the legal owner to compel the company to pay the amount of the policy to him, is pending in one State, and an action in equity by the equitable owner to prevent such payment, is pending in another State, unless all interested per- sons are parties to the latter? Could the Court of Equity safely pro- ceed to judgment against the company, unless the legal owner was before it as a party? If it should enjoin the company from making payment to any one except the equitable owner, it could not prevent the legal owner from prosecuting his action to collection in the other jurisdiction. It could not enjoin a person over whom it had no jurisdiction, nor make any decree affecting his rights. The general rule in equity requires that all persons interested in the subject of the action should be made parties, in order to prevent a multiplicity of suits and secure a final determination of their rights. Osterhoudt v. Supervisors, 98 N. V. 239; Dei hum r. Lee, 87 id. 599. There is an essential difference between the practice at law and in 406 MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. [CHAP. III. equity in determining who are proper and necessary parties. Story, in his work on Equity Pleadings (§ 72), says that two general prin- ciples control courts of equity in this respect: 1. That the rights of no man shall be finally decided unless he himself is present, or at least has had a full opportunity to appear and vindicate his rights; 2. That when a decision is made upon any particular subject- matter, the rights of all persons whose interests are immediately con- nected with that decision and affected by it, shall be provided for as far as they reasonably may be. The learned author adds: "It is the coDStant aim of courts of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject- matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also, that future litigation may be prevented." As Lord Hardwicke once said, all persons ought to be made parties who are necessary to make the determination complete and to quiet the question. Poore v. Clark, 2 Atk. 515. Not only all persons whose rights may be affected by the judgment should be brought into court, but all whose presence is essential to the protection of any party to the action. Gray v. Schenck, 4 N. Y. 460; Russell v. Clark, 7 Cranch, 69, 98; Picquet v. Swan, 5 Mason, 561 ; Fell v. Brown, 2 Brown's Ch. 218. The burden is on the plaintiff to secure the presence of all such persons, and it is his misfortune if he is unable to do so. When there are conflicting claimants to the same obligation, each insisting upon it as exclusively his own, all should be made parties before the question of title is determined by a court of equity in favor of either against the one from whom the obligation is due. Otherwise payment or performance may be exacted as many times as there are separate claimants. It follows that the title to a chose in action, such as the policy in question, cannot be settled unless all those who claim any interest therein, whether legal or equitable, are joined as parties, plaintiff or defendant. As it is conceded that Kelly, although nominally, is not really a party to the action, he has not had his day in court, and the decree in favor of the plaintiff being void as to him on that account, is powerless to affect his rights or to afford protection to the defendant company in obeying its command. The absence of jurisdiction over a party is the absence of power to render judgment against that party. While the court assumed to pronounce judgment against Kelly and to restrain him from receiv- ing the money due upon the policy and from suing for its recovery, its action in that regard was coram non judice and void as to him. It could not exercise judicial power over one who was not subject to its jurisdiction, nor compel him to obey a decree that was rendered without due process of law. While its command to the company not to pay Kelly could be enforced by punishment for disobedience, its command to Kelly not to sue the company could not be enforced by punishment or otherwise, because it was made without authority. SECT. III.] MAHK V. NORWICH UNION FIRE INSURANCE SOCIETY. 407 Hence Kelly could compel the company to do what the judgment pro- hibited it from doing. Aside from the question of power to proceed without jurisdiction over Kelly, such a judgment is unreasonable and hence inequitable. A court of equity should not restrain a party from doing an act, when it has no power to protect that party from being compelled by another court of competent jurisdiction to do the act thus prohibited. A forcible illustration of this appears in a case recently reported, which lacks no element of complete analogy, as it was the judgment of the court of last resort in Iowa in the action brought by Kelly against the defendant company and set forth in its answer in this action. Kelly v. Norwich Union Fire Ins. Co., 47 N. W. Rep. 986, 79 Iowa R. 425. While the judgment in that case is not before us as evidence, the reported decision therein is just as valuable to illustrate what might reasonably be expected to take place as if it were officially known to us as a record of what had taken place. That learned court, in affirming a recovery by Kelly upon the policy in question for its whole amount, said: "The record of the New York court was rightly rejected for the reason that, as against Kelly, the party claiming in this case to hold the policy and all rights under it, the decree and proceeding are void for the reason that he was not served with process subjecting him to the jurisdiction of the New York court. Kelly was served with process in this Slate and did not appear in the case. The New York court failed to acquire jurisdic- tion of his person by service of process in this State. The judg- ment, therefore, as to him is void." We regard the case cited as a practical demonstration that Kelly is a necessary party to this action and that a court of equity should not have proceeded to judgment against the company without first acquiring jurisdiction over him. If this were an action at law brought by the plaintiffs to recover upon the policy, a different ques- tion would be presented, involving a conflict between the courts of New York and Iowa. As it is an action in equity, however, it is not necessary for us to now consider that subject. Having in view our form of government, the comity due from the courts of one State to those of another and the necessity for freedom of commercial transactions between citizens of different States, such questions should .not be hastily entertained, but should be avoided when the rights of parties can be satisfactorily determined upon other grounds. Story on Conflict of Laws, § 9. We think that further argumenl is not required to show that Kelly was a necessary party to this action and that the trial court erred in rendering the judgment appealed from without first acquiring juris- diction over him. The judgmenl should, therefore, be reversed, and a new trial granted, with costs to abide event. All concur. Judgment reversed. 408 RENIER V. HURLBUT. [CHAP. III. RENIER v. HURLBUT. Supreme Court of Wisconsin. 1891. [Reported 81 Wis. 24.] Cassoday, J. It appears from the record that September 26, 1888, the plaintiff recovered judgment upon a policy of insurance in the Circuit Court for Brown County against the Dwelling-House Insurance Company, a corporation created and organized under the laws of Massachusetts, and having its principal place of business at Boston, by reason of loss by fire of a dwelling-house, barns, and property therein, for $3,416.76 ; that the said Boston company appealed from said judg- ment to this court, and upon such appeal the defendants, Hurlbut and Boaler, executed an undertaking to the plaintiff, wherein and whereby they agreed and undertook, pursuant to the statute, that they would pay all costs which might be awarded against said Boston company on said appeal, not exceeding $250, and also undertook that, in case said judgment should be affirmed, they would pay the amount thereof; that said judgment was affirmed on said appeal, April 25, 1889 (74 Wis. 89, 42 N. W. Rep. 208) ; that the remittitur thereon was not filed in the trial court until November 18, 1889; that August 1, 1890, this action was commenced, upon said undertaking, against said Hurlbut and Boaler ; that the defendants herein answered, and admitted all the allegations of the complaint, and, in effect, alleged that June 28, 1889, the Saint Paul Fire & Marine Insurance Company, created and organ- ized under the laws of Minnesota, commenced an action in the Superior Court for Cook County, in the State of Illinois, against this plaintiff, on a claim for $2,256, and in said action served garnishee process upon the said Boston company's agent at Chicago ; that the process in said last-named action against this plaintiff was made returnable November 4, 1889, and was served only by the publication of notice for three successive weeks, commencing October 22, 1889, and ending Novem- ber 5, 1889, and mailing copies thereof, etc., to the plaintiff in Wis- consin, where she resided during all the times mentioned ; that upon the trial of said action the court found, in effect, the facts stated ; and also that the said Boston company had not paid the plaintiff anything on said judgment, except $1,200, paid thereon July 1, 1889 ; that this plaintiff had not been personally served with summons or other process in the proceedings in the Superior Court of Cook County, and had not appeared in said proceedings ; that the judgment so recovered in said Brown County was exempt from seizure on attachment or exe- cution, under the laws of Wisconsin, during all the time mentioned, but was not exempt under the laws of Illinois ; and, as a conclusion of law, that the defendants were entitled to judgment against the plain- tiff, abating this action. From the judgment entered thereon accord- ingly the plaintiff brings this appeal. SECT. III.] RENIER V. HURLBUT. 409 During all the times mentioned in the foregoing statement the plain- tiff, Mrs. Renier, was domiciled in and a resident of this State. The St. Paul company mentioned, claiming to be a creditor of hers for a large amount, commenced an action against her, not in any of the courts of Wisconsin, but in the Superior Court for Cook County, 111., and garnished the Boston company, as a foreign corporation, b\' serv- ing garnishee process upon its agent located in Chicago. Mrs. Renier did not appear in that action, nor in such garnishee proceedings, and no process or notice of any kind was ever served upon her therein otherwise than by publication, as mentioned. It is claimed that such publication was insufficient, but for the purpose of this appeal, it is assumed that the statutes of Illinois were in all respects complied with. Upon the facts stated the law is well settled by the Supreme Court of the United States to the effect that the Chicago court obtained no jurisdiction to render any personal judgment against Mrs. Renier. St. Clair v. Cox, 106 U. S. 350 ; Pennoyer v. Neff, 95 U. S. 714 ; Thompson v. Whitman, 18 Wall. 457 ; Public Works v. Columbia College, 17 Wall. 521. To the same effect are the deci- sions of this court. AVitt v. Meyer, 69 Wis. 595, 35 N. W. Rep. 25 ; Smith v. Grady, 68 Wis. 215, 31~ N. W. Rep. 477. This being so, it is very obvious that the most that could be accomplished in the Chicago court was to reach property, assets, or credits belonging to Mrs. Renier, and within the jurisdiction of that court. This is appar- ent from the authorities cited. If there was, therefore, a want of jurisdiction in that court as to such property, assets, or credits, then the proceedings therein were null and void, and could not operate to abate or defeat the suit at bar. The question recurs whether, at the time of such garnishment, Mrs. Renier was the owner of any property, assets, or credits within such jurisdiction of the Chicago court. There is no pretence that at the time the garnishee papers were served upon the Chicago agent of the Boston company he had in his possession or under his control any tangible property belonging to Mrs. Renier. The extent of the claim is that at that time the Boston company was indebted to Mrs. Renier upon the judgment recovered in the Circuit Court for Brown County, mentioned in the foregoing statement, and hence that such indebtedness was attached or reached by the service of the garnishee papers upon the Boston company's agent in Chicago. If such contention can be maintained, then it is obvious that the St. Paul company might have attached such indebtedness by such garnishee proceedings in any State or city in the Union where the Boston com- pany happened to have an office and an agent. This would necessarily be upon the theory that such indebtedness to Mrs. Renier was ambula- tory, following each of the several agents of the Boston company, and, for the purposes of garnishment, having a situs with and in the office of each and all of such agents, wherever they happened to be located. If such is the law, it is certainly important that all should know it. As indicated, none of the parties to the proceedings in the Chicago court 410 RENIER V. HURLBUT. |_ CHAP - IIL were residents of Illinois. Proceedings by garnishment are in their nature very much like the old trustee process. In such a case in Massachusetts, at an early da}', the court refused to take jurisdiction, for the reason that all the parties were non-residents. Tingley v. Bateman, 10 Mass. 346. It was there said, in behalf of the court, that ' ' the summoning of a trustee is like a process in rem. A chose in action is thereby arrested, and made to answer the debt of the principal. The person entitled by the contract or duty of the supposed trustee is thus summoned by the arrest of this species of effects. These are, however, to be considered, for this purpose, as local, and as remaining at the residence of the debtor or person intrusted for the principal ; and his rights, in this respect, are not to be considered as following the person of the debtor to any place where he may be transiently found, to be there taken at the will of a third person, within a jurisdiction where neither the original creditor nor debtor resides." To the same effect are Sawyer v. Thompson, 24 N. H. 510 ; Bowen v. Pope, 125 111. 28, 17 N. E. Rep. 64. It has also been repeatedly held in Massachusetts that a trustee residing in another State, though temporarily therein when service is made upon him, is not liable to the trustee process, and especially is this so where the principal defendant is also a non-resident. Ray v. Underwood, 3 Pick. 302 ; Hart v. Anthony, 15 Pick. 445 ; Nye v. Liscombe, 21 Pick. 263. To the same effect are Lawrence v. Smith, 45 N. H. 533 ; Green v. Bank, 25 Conn. 452 ; Lovejoy v. Albee. 33 Me. 414. The only exception to this rule seems to be where tangible prop- erty belonging to the principal defendant has been actually seized within the State, or the contract or promise is to be performed within the State. Id. ; Sawyer v. Thompson, supra; Young v. Ross. 31 N. H. 201 ; Lawrence v. Smith, supra ; Guillander v. Howell, 35 N. Y. 657 ; Lovejoy v. Albee, siqira. Some of the authorities cited and the views thus expressed were considered and sustained by Mr. Justice Orton in Commercial Nat. Bank v. Chicago, M. & St. P. Ry. Co., 45 Wis. 172. The courts of Massachusetts have gone to the extent of holding that a resident of that State, having contracted to deliver goods at a place in another State, could not be charged in foreign attachment as the trustee of the person to whom the goods were thus contracted. Clark v. Brewer, 6 Gray, 320. In Danforth v. Penny, 3 Mete. (Mass.) 564, it was held that a foreign corporation, having no specific articles of property in its possession within that State belonging to the principal defendant to whom it was indebted, could not be charged by trustee process, notwithstanding man}- of its members and officers resided there, and its books and records were kept there. To the same effect is Gold v. Railroad Co., 1 Gray, 424, where it was held that a foreign railroad corporation could not be charged by the trustee process, although in possession of a railroad in Massachusetts under leases from the pro- prietors thereof; and also Towle v. Wilder, 57 Vt. 622 ; Railroad Co. v. Dooley, 78 Ala. 524 ; Railroad Co. v. Chumbey (Ala.), 9 South. Rep. 286; Railroad Co. v. Thornton, 60 Ga. 300 ; Bates v. Railroad Co., SECT. III.] RENIER V. HURLBUT. 411 60 Wis. 296, 19 N. W. Rep. 72 ; Sutherland w. Bauk, 78 Ky. 250. In Smith v. Life Insurance Co., 14 Allen, 336, it was held that the courts of Massachusetts would not entertain jurisdiction of a bill in equity, brought by a citizen of Alabama against such foreign insurance corporation, to restore him to his rights under a life policy, notwith- standing such foreign corporation transacted business therein, and had a resident agent therein, upon whom all lawful process against the company might be served. The theory upon which foreign attachments and foreign garnishments are sustained is that the principal defendant is beyond the reach of process, but that his property is within the reach of such process, and ma}', therefore, be seized thereon. Railroad Co. v. Pennock, 51 Pa. St. 244. As indicated, the proceedings in the Chicago court were not based upon any cause of action originating in the State of Illinois, nor to enforce any contract or engagement entered into with reference to an}- subject-matter within that State, but merely for the purpose of reaching property belonging to Mrs. Renier, having no tangible existence in that State. The authorities cited, as well as others which might be cited, pretty clearly show that the Chicago court obtained no jurisdiction over that property. Banking Co. v. Carr, 76 Ala. 388 ; Brauser v. Insurance Co., 21 Wis. 506. Nor was it the purpose of such proceedings to reach property belonging to the Boston company. Its indebtedness to Mrs. Renier was in no sense its prop- erty, but rather an indication of the absence of its property. In speak- ing of the situs of choses in action for the purposes of taxation, Mr. Justice Field observed that kt to call debts property of the debtors is simply to misuse terms. All the property there can be in the nature of things in debts of corporations belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due." State Tax on Foreign-Held Bonds, 15 Wall. 320. This principle has received recent sanction in this court. State v. Gaylord, 73 Wis. 325, 41 N. W. Rep. 521. It is obvious from what has been said that, if the indebtedness of the Boston company to Mrs. Renier has any situs outside of Wisconsin for the purposes of garnishment, it was at the home office of that com- pany in Massachusetts ; certainly not with the respective agents of that company, wherever located in the several States. But, as observed, that indebtedness was in the form of a judgment recovered by Mrs. Renier in a court of her domicile in Wisconsin. The statute of this State required the Boston company to pay that judgment to Mrs. Renier within the time therein specified. Section 1974, Rev. St. 1 Such payment, or its equivalent, was absolutely essential to the con- tinuance of business in the State. Id. Such being the rules of law. 1 Section 1974 requires insurance companies to pay final judgments against them in Wisconsin within sixty 'lays after the rendition thereof, or cease issuing policies in the State until the judgment is paid, and makes violations of the statute punishable by forfeiture, 412 LOUISVILLE AND NASHVILLE RAILROAD V. NASH. [CHAP. III. and the facts being as stated, we must hold that the situs of the in- debtedness in question for the purposes of garnishment at the time of the commencement of the proceedings in the Chicago court was onlj- in Wisconsin, where Mrs. Renier resided. This view is sustained by numerous cases cited by counsel for the plaintiff, among which are Wallace v. McConnell, 13 Pet. 136 ; Railroad Co. v. Gomila, 132 U. S. 485 ; Bank v. Rollin, 99 Mass. 313; Trowbridge v. Means, 5 Ark. 135: Shinn v. Zimmerman, 23 N. J. Law, 150; Bank v. Snow, 9 R. I. 11; Wood u. Lake, 13 Wis. 84. It follows that the proceedings in the Chicago court did not operate as a bar or abate- ment of this action. The judgment of the Circuit Court is reversed, and the cause remanded, with direction to enter judgment in favor of the plaintiff and against the defendants for the proper amount remain- ing due and unpaid on the former judgment, with interest and costs. 1 LOUISVILLE AND NASHVILLE RAILROAD v. NASH. Supreme Court of Alabama. 1898. [Reported 118 Alabama, 477. J Brickell, C. J. 2 The appellee, a resident of this State, and an employe of appellant, brought this action against appellant, the Louisville & Nashville Railroad Company, a corporation organized under the laws of the State of Kentucky, and doiug business in that State, and also in Alabama and Tennessee, to recover the amount of wages earned and due him for work and labor done here for appel- lant. In defence of the action, appellant set up the payment by it, previously to the commencement of this suit, of a judgment rendered against it in a justice's court in the State of Tennessee in an attach- ment suit, founded on a debt due in Tennessee, wherein appellee was defendant and appellant was summoned to answer as garnishee. Appellee was a resident of Alabama at the time of the commence- ment, and during the pendency, of said attachment suit, was not personally served with notice thereof, had no actual notice, and did not voluntarily appear, but service was had by publication, in accordance with the laws of Tennessee. The questions presented by this appeal are, therefore — First, whether the courts of one State have, or can acquire, jurisdiction to attach and condemn a debt due to a non-resident, and payable in the State of his residence, by ser- vice of process on his debtor as garnishee, in the absence of personal service within the State of suit on the creditor or his voluntary 1 Ace. Nat. Bank v. Furtick (Del.), 42 Atl. 479 ; Swedish-American Bank v. Bleeeker, 72 Minn. 383, 75 N. W. 740 ; Douglass v. Phenix Ins. Co., 138 N. Y. 209, 33 N. E. 938 ; Ranney v. Morrow, 3 Pugs. (N. B.) 270. — Ed. 2 The opinion only is given : it sufficiently states the case. — Ed. SECT. III. J LOUISVILLE AND NASHVILLE RAILROAD V. NASH. 413 appearance; and, second, whether, if such courts are without juris- diction for this purpose, the payment by the garnishee of a judgment rendered against him as garnishee, under such circumstances, will constitute any defence to a subsequent suit by his creditor to recover the debt. The case presented is ruled, with respect to both questions, by the cases of Railroad Co. v. Dooley, 78 Ala. 524, and Railroad Co. v. Chumley, 92 Ala. 317. In the former case it was held that a debt due by a foreign corporation to an employe in the State of its crea- tion, although it was doing business in this State also, could not be subjected by a creditor in this State by attachment against the non- resident creditor and garnishment against the corporation. In the latter we decided that the payment by a railroad corporation created by the laws of this State, but doing business also in Tennessee, of a judgment rendered against it in Tennessee under a garnishment issued on a judgment recovered in that State against an employe resident in this State, was no defence to an action by the employe to recover the wages due him for work done in this State, in the absence of evidence showing that, by the statutes of Tennessee, the court had acquired jurisdiction of the debt sought to be reached and subjected. In both of the above cases it was expressly decided that the situs of a debt, for the purpose of garnishment, is at the domicile of the creditor, and not that of the debtor; and this fact is the true foun- dation for the propositiow that a State has no jurisdiction over a debt due to a non-resident, and payable without the State of suit, in the absence of personal service on the creditor within the State, or his voluntary appearance in a proceeding in which jurisdiction over it is sought to be exercised. If it be conceded that a debt due by a resident of, or a corporation doing business in, one State to a resi- dent in another State is not property within the State of the debtor's residence, no legislation by the latter State can give it a situs there for the purpose of enabling its citizens, or other persons resorting to its courts, to subject it to the payment of claims against the creditor by garnishing the person or corporation from whom it is due. If it has no situs within the debtor's State, in the absence of legislation, any legislation attempting to give it such situs, or to prescribe the manner of service on either the debtor or the non-resident creditor, by which jurisdiction over it may be acquired, unless by personal service on the creditor within the State, or his voluntary appearance, would be as nugatory and ineffectual to dispose of the creditor's property in the debt as would be legislation attempting to acquire jurisdiction over tangible property situated without the State. The subject-matter of such legislation, namely, the property over which it is attempted to acquire jurisdiction, is entirely beyond the power and contol of the State. In the view we take of the question, the condemnation of a debt due to a non-resident, without personal ser- vice within the State of suit on the defendant, or owner of the debt, 414 LOUISVILLE AND NASHVILLE RAILROAD V. NASH. [CHAP. III. or his voluntary appearance, is without due process of law, and it seems manifest that a State cannot make that due process of law which is not such. Martic v. Railroad Co., 50 Hun, 347, 3 N. Y. Supp. 82. It is immaterial also, under this concession, whether the corporation garnishee, if the garnishee be a corporation, is one created by the laws of the State where the debt is sought to be condemned, or is a foreign corporation, doing business therein by permission of the State. The question is not one of jurisdiction over the garnishee, but one of jurisdiction over property situated without the State, and, through the seizure of such property, over the owner thereof. The right of a State to inquire into the obligations of a non- resident, and its jurisdiction to attach his property to answer for such obligations, is founded solely on the fact that each State has exclusive control and jurisdiction over the property situated within its territorial limits, and the inquiry can be carried only to the extent necessary to control the disposition of such property. If there be no personal service on the defendant or owner of the property, or appear- ance by him, the jurisdiction cannot extend beyond binding the prop- erty attached or effects garnished. Consequently, if the non-resident has no property within the State, and there has been no personal service on him within the State, or voluntary appearance by him, there is nothing upon which its tribunals can adjudicate; and any judgment rendered under such circumstances, whether affecting the person only, or the property also, would be void for want of juris- diction of the person and of the subject-matter. Bank v. Clement, 109 Ala. 280; Pennoyer v. Neff, 95 U. S. 714; St. Clair v. Cox, 106 U. S. 350; Freeman v. Alderson, 119 U. S. 185. It was held in Pennoyer v. Neff, supra, that, in a suit on a money demand against a non-resident, substituted service of process by publication is effect- ual only where, iu connection with process against the person for the commencement of the action, property within the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching said property or affecting some interest therein ; and that a judgment by default against a non-resident upon such ser- vice only, no property of the defendant within the State having been seized prior to the rendition of the judgment, was without due process of law, and void, and the title of defendant to property within the State sold under execution issued on such judgment was not devested by such sale, notwithstanding the statutes of the State of suit authorized service in this manner upon a non-resident, and attempted to protect the title of a purchaser in good faith of prop- erty sold under execution issued on such judgment. In the opinion by Mr. Justice Field it is said: "No State can exercise direct juris- diction and authority over persons or property without its territory. The several States are of equal dignity and authority, and the inde- SECT. III. J LOUISVILLE AND NASHVILLE RAILROAD V. NASH. 415 pendence of one implies the exclusion of power from all others. And so it bus been laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory, except so far as is allowed by com it} 7 ; and that no tribunal estab- lished by it can extend its process beyond that territory so as to sub- ject either persons or property to its decisions. ' And any exertion of authority of this sort beyond this limit,' says Story, ' is a mere nullity, and incapable of binding such persons or property in any other tribunal.' " This decision, involving, as it did, a construction of the fourteenth amendment of the Federal Constitution, and its effect on judgments rendered against non-residents without personal service or voluntary appearance, and without a preliminary seizure of property of the defendant within the State of suit, is binding upon, and must be followed by, the courts of the several States. It necessarily results from the principles declared therein that if the situs of a debt for the purpose of garnishment be at the domicile of the creditor, and the debt be not property within the garnishee State, any judgment rendered against the creditor, as well as any judgment the effect of which is, on its face, to discharge the debt due to the non-resident by requiring the debtor, the garnishee, to pay it to the non-resident's creditor, is without due process of law, and void, unless there was personal service on the defendant within the State or a voluntary appearance by him. It necessarily follows, also, that the payment of such judgment by the garnishee is no protection to him in a subsequent suit by his creditor to recover the debt, and that any legislation by the garnishee State attempting to acquire jurisdic- tion over the debt, by declaring it to be property within its limits, subject to seizure by service of process on the garnishee and service by publication on the non-resident defendant, "is a mere nullity, and incapable of binding such persons or property in any other tribunal." Any attempt to reconcile the conflicting authorities on the question of the situs of a debt for the purpose of garnishment would be vain, but analogy, as well as reason and justice to the creditor, would seem to fix it at the domicile of the creditor, and forbid its seizure or any change in the ownership thereof, by the law or procedure of any other State. It is now well settled that a debt due by an insol- vent to a non-resident is property within the creditor's State, and that no law or decree of the debtor's State discharging his debts can operate to discharge the debt due to the non-resident. Brown v. Smart, 145 U. S. 454; Denny v. Bennett, 128 U. S. 489; Pattee v. Paige, 163 Mass. 352; Bank o. Batcheller, 151 Mass. 589; Wilson v. Matthews, 32 Ala. 345. It is equally well settled that, for the purpose of taxation, a debt has its situs at the domicile of the cred- itor. State Tax on Foreign-Held Bonds, 15 Wall. 300; Kirtland v. Hotchkiss, 100 0. S. 491; In re Branson's Estate, 150 N. Y. 1; Potter v. Ross, 23 N. J. Law, 517; Boyd v, City of Sclma, 9G Aia. 416 LOUISVILLE AND NASHVILLE RAILROAD V. NASH. [CHAP. III. 150. In the opinion of the State Tax Case it was said: "But debts owing by a corporation, like debts owing by individuals, are not property of the debtors in any sense. They are obligations of the debtors, and only possess value in the hands of the creditors, — with them are property, and in their bauds they may be taxed. To call debts property of the debtors is simply to misuse terms. All the property there can be, in the nature of things, in the debts of cor- porations, belongs to the creditors to whom they are payable, and follows their domicile, whatever they may be. Tbeir debts can have no locality separate from the parties to whom they are due." We are unable to perceive any sound reason for giving to a debt a differ- ent situs for the purpose of garnishment, and none, satisfactory to us, has been offered by those decisions which give it a different situs for this purpose only. If a debt due to a non-resident cannot be discharged by an insolvency law or decree of the debtor's State, because of a want of jurisdiction over the creditor and the debt, a like reason should forbid its discharge by garnishment proceedings. Those courts which adhere to the contrary view are not themselves in accord as to the theory upon which they can acquire jurisdiction over such debts. In some it is held that, for the purpose of garnishment, a State has the power to fix the situs of a debt at the domicile of the debtor, although the creditor be a non-resident. Williams v. Inger- soll, 89 N. Y. 508; Douglass v. Insurance Co., 138 N. Y. 209; Bragg v. Gaynor, 85 Wis. 468. As we have seen above, the exercise of such power would be a nullity in its effect upon the person of a non-resident or the debt due him. Others hold that the situs of a debt is wherever a suit may be maintained to recover it. Harvey v. Railway Co., 50 Minn. 406; Manufacturing Co. v. Lang, 127 Mo. 242. As a general proposition, this, as we have seen, is incorrect, and, as limited and applied to garnishments only, it seems to us, merely an arbitrary distinction. Moreover, if its situs is in the State of the debtor only by reason of the fact that a suit to recover it may there be maintained, a debt due by a foreign corporation doing business in a State other than that of its creation, to a non- resident of such State, could not be reached by a garnishment sued out in the State in the absence of a statute expressly authorizing it to be sued therein on a cause of action arising without the State; for it is well settled, as a general rule, that no action in personam can be maintained against a foreign corporation, unless the contract sued on was made or was to be performed, or the injury complained of was suffered, in the State in which the action is brought. Railroad Co. v. Carr, 76 Ala. 388; St. Clair v. Cox, 106 U. S. 350. And it has been expressly held that a non-resident creditor of a corporation cannot have his property in a debt seized in a State to which the corporation may resort merely for the purpose of doing business through its agents, when the claim arose on a contract not to be performed within the State of suit. Reimers v. Manufacturing Co., SECT. III.] CHICAGO, ETC. RAILWAY V. STURM. 417 17 C. C. A. 228, 70 Fed. 573; Douglass v. Insurance Co., 138 N. Y. 200. "We prefer to adhere to the principle upon which our former cases were decided, that the situs of a debt is at the- domicile of the creditor, for the purpose of garnishment as well as for other purposes. Railroad Co. i\ Dooley, 78 Ala. 524; Railroad Co. v. Chumley, 92 Ala. 317; Reuo, Non-res., § 138 et seq. ; Railroad Co. v. Smith, 7<» Miss. 344, and notes; Central Trust Co. v. Chattanooga, R. & C. R. Co., 68 Fed. 685; Railway Co. v. Sharitt, 43 Kan. 375; Renier v. Hurlbut, 81 "Wis. 24. Adhering in this respect to the situs of the debt due from appellant to appellee, we are constrained by the deci- sions of the Supreme Court of the United States, cited above, to hold that the judgment of the Tennessee court, operating, as it did, on its face, to condemn and devest appellee's property in the debt over which it had not acquired jurisdiction by personal service within the State on appellee, or by his voluntary appearance, was without due process of law, and absolutely void for want of jurisdic- tion of the res, the debt, or of the person of its owner. To such judgments the Constitution of the United States does not require that any faith and credit be given; the constitutional provision that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State," and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, being now construed as applicable "only when the court rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject-matter." Pennoyer v. Neff, 95 U. S. 714, supra. We find no error iu the judgment of the city court and it must be affirmed. 1 CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY v. STURM. Supreme Court of the United States. 1899. [Reported 174 United States, 710 ] The defendant in error brought an action against the plaintiff in eiTor in a justices' court of Belleville, Republic County, Kansas, for the sum of 8140, for wages due. Judgment was rendered for him in the sum of $140 and interest and costs. The plaintiff in error appealed from the judgment to the District Court of the county, to which court all the papers were transmitted, ■and the case docketed for trial. 1 Ace. Centra] Trust Co. v. C. K & C. R. K., 68 Fed. 685. — Ed. -'7 418 CHICAGO, ETC. RAILWAY V. STURM. [CHAP. III. On the 10th of October, 1894, the case was called for trial, when plaintiff in error filed a motion for continuance, supported by an affidavit affirming that on the 13th day of December, 1893, in the county of Pottawattomie and State of Iowa, one A. H. Willard com- menced an action against E. H. Sturm in justices' court before Oride Vien, a justice of the peace for said county, to recover the sum of $78.63, with interest at the rate of ten per cent per annum, and at the same time sued out a writ of attachment and garnishment, and duly garnisheed the plaintiff in error, and at that time plaintiff in error was indebted to defendaut in error in the sum of $77.17 for wages, being the same wages sought to be recovered in this action ; That plaintiff in error filed its answer, admitting such indebtedness;. That at the time of the commencement of said action in Pottawat- tomie County the defendant was a non-resident of the State of Iowa, and that service upon him was duly made by publication, and that afterwards judgment was rendered against him and plaintiff in error as garnishee for the sum of $76.16, and costs of suit amounting to $19°, and from such judgment appealed to the District Court of said county, where said action was then pending undetermined; That the moneys sought to be recovered in this action are the same moneys sought to be recovered in the garnishment proceedings, and that under the laws of Iowa its courts had jurisdiction thereof, and that the said moneys were not at the time of the garnishment exempt from attachment, execution, or garnishment; that the justice of the peace at all of the times of the proceedings was a duly qualified and acting justice, and that all the proceedings were commenced prior to the commencement of the present action, and that if the case be con- tinued until the next term of the court the action in Iowa will be determined and the rights of plaintiff in error protected. The motion was denied, and the plaintiff in error pleaded in answer the same matters alleged in the affidavit for continuance, and attached to the answer a certified copy of the proceedings in the Iowa courts. It also alleged that it was a corporation duly organized under the laws of the States of Illinois and Iowa, doing business in the State of Kansas. The defendant in error replied to the answer, and alleged that the amount clue from plaintiff in error was for wages due for services rendered within three months next prior to the commencement of the action; that he was a resident, head of a family, and that the wages were exempt under the laws of Kansas, and not subject to garnish- ment proceedings ; that plaintiff in error knew these facts, and that the Iowa court had no jurisdiction of his property or person. Evidence was introduced in support of the issues, including cer- tain sections of the laws of Iowa relating to service by publication, and to attachment and garnishment, and judgment was rendered for the defendant in error in the amount sued for. A new trial was moved, on the ground, among others, that the SECT. Til.] CHICAGO, ETC. RAILWAY V. STURM. 419. ''decision is contrary to and in conflict with section 1, article IV., of the Constitution of the United States." The motion was denied. On error to the Court of Appeals, and from thence to the Supreme Court, the judgment was affirmed, and the case was then brought here. The defendant in error was notified of the suit against him in Iowa and of the proceedings in garnishment in time to have pro- tected his rights. The errors assigned present in various ways the contention that the Supreme Court of Kansas refused to give full faith and credit to the records and judicial proceedings of the courts of the State of Iowa, in violation of section 1, article IV., of the Constitution of the United States, and of the act of Congress entitled "An act to pre- scribe the mode in which the public acts, records, and judicial pro- ceedings in each State shall be authenticated so as to take effect in every other State," approved May 26, 1790. Mr. W. F. Evans and Mr. 31. A. Low for plaintiff in error. No appearance for defendant in error. Mr. Justice McKenna, after making the foregoing statement, delivered the opinion of the court. How proceedings in garnishment may be availed of in defence — whether in abatement or bar of the suit on the debt attached or for a continuance of it or suspension of execution — the practice of the States of the Union is not uniform. But it is obvious and necessary justice that such proceedings should be allowed as a defence in some way. In the pending suit plaintiff in error moved for a continuance, and not securing it pleaded the proceedings in garnishment in answer. Judgment, however, was rendered against it, and sustained by the Supreme Court, on the authority of Missouri Pacific Railway Co. v. Sharitt, 43 Kansas, 375, and "for the reasons stated by Mr. Justice Valentine in that case." The facts of that case were as follows : The Missouri Pacific Rail- way Company was indebted to Sharitt for services performed in Kansas. Sharitt was indebted to one J. P. Stewart, a resident of Missouri. Stewart sued him in Missouri, and attached his wages in the hands of the railway company, and the latter answered in the suit in accordance with the order of garnishment on the 28th of July, 1887, admitting indebtedness, and on the 29th of September was ordered to pay its amount into court. On the 27th of July Sharitt brought an action in Kansas against the railway company to recover for his services, and the company in defence pleaded the garnish- ment and order of the Missouri court. The amount due Sharitt hav- ing been for wages, was exempt from attachment in Kansas. It was held that the garnishment was not a defence. The facts were similar therefore to those of the °«*.se at bar. 420 CHICAGO ETC. RAILWAY V. STURM. [CHAP. III. The ground of the opinion of Mr. Justice Valentine was that the Missouri court had no jurisdiction because the situs of the debt was in Kansas. In other words, and to quote the language of the learned justice, "the situs of a debt is either with the owner thereof, or at his domicile; or where the debt is to be paid; and it cannot be sub- jected to a proceeding in garnishment anywhere else. ... It is not the debtor who can cany or transfer or transport the property in a debt from one State or jurisdiction into another. The situs of the property in a debt can be changed only by the change of location of the creditor who is the owner thereof, or with his consent." The primary proposition is that the situs of a debt is at the domi- cile of a creditor, or, to state it negatively, it is not at the domicile of the debtor. The proposition is supported by some cases; it is opposed by others. Its error proceeds, as we conceive, from confounding debt and credit, rights and remedies. The right of a creditor and the obligation of a debtor are correlative but different things, and the law in adapting its remedies for or against either must regard that difference. Of this there are many illustrations, and a proper and accurate attention to it avoids misunderstanding. This court said by Mr. Justice Gray in Wyman v. Halstead, 109 U. S. 654, 656: "The general rule of law is well settled, that for the purpose of founding administration all simple contract debts are assets at the domicile of the debtor." And this is not because of defective title in the creditor or in his administrator, but because the policy of the State of the debtor requires it to protect home creditors. Wilkins v. Ellett, 9 Wall. 740; 108 U. S. 256. Debts cannot be assets at the domicile of the debtor if their locality is fixed at the domicile of the creditor, and if the policy of the State of the debtor can protect home creditors through administration proceedings, the same policy can protect home creditors through attachment proceedings. For illustrations in matters of taxation, see Kirtland v. Hotchkiss, 100 U. S. 491; Pullman's Car Co. v. Pennsylvania, 141 U. S. 18; Savings and Loan Society v. Multnomah County, 169 U. S. 421. Our attachment laws had their origin in the custom of London. Drake, § 1. Under it a debt was regarded as being where the debtor was, and questions of jurisdiction were settled on that regard. In Andrews v. Clerke, 1 Carth. 25, Lord Chief Justice Holt summarily decided such a question, and stated the practice under the custom of London. The report of the case is brief, and is as follows: — "Andrews levied a plaint in the sheriff's court in London and, upon the usual suggestion that one T. S. (the garnishee) was debtor to the defendant, a foreign attachment was awarded to attach that debt in the hands of T. S., which was accordingly done; and then a diletur was entered, which is in nature of an imparlance in that court. "Afterwards T. S. (the garnishee) pleaded to the jurisdiction set- ting forth that the cause of debt due from him to the defendant Sir SECT. III.] CHICAGO, ETC. RAILWAY V. STURM. 421 Robert Clerke, and the contract on which it was founded, did arise, mid was made at II. in the county of Middlesex, extra jurisdictionem curice; and this plea being overruled, it was now moved (in behalf of T. S., the garnishee) for a prohibition to the sheriff's court aforesaid, suggesting the said matter, (viz.) that the cause of action did arise extra jurisdictionem, etc., but the prohibition was denied because the debt always follows the person of the debtor, and it is not material where it was contracted, especially as to this purpose of foreign attachments ; for it was always the custom in London to attach debts upon bills of exchange, and goldsmith's notes, etc., if the goldsmith who gave the note on the person to whom the bill is directed, liveth within the city without any respect had to the place where the debt was contracted." The idea of locality of things which may be said to be intangible is somewhat confusing, but if it be kept up the right of the creditor and the obligation of the debtor cannot have the same, unless debtor and creditor live in the same place. But we do not think it is neces- sary to resort to the idea at all or to give it important distinction. The essential service of foreign attachment laws is to reach and arrest the payment of what is due and might be paid to a non- resident to the defeat of his creditors. To do it he must go to the domicile of his debtor, and can only do it under the laws and pro- cedure in force there. This is a legal necessity, and considerations of situs are somewhat artificial. If not artificial, whatever of sub- stance there is must be with the debtor. He and he only has some- thing in his hands. That something is the res, and gives character to the action as one in the nature of a proceeding in rem. Mooney v. Buford & George Mfg. Co., 72 Fed. Rep. 32; Conflict of Laws, § 549, and notes. To ignore this is to give immunity to debts owed to non-resident creditors from attachment by their creditors, and to deny necessary remedies. A debt may be as valuable as tangible things. It is not capable of manual seizure, as they are, but no more than they can it be appropriated by attachment without process and the power to execute the process A notice to the debtor must be given, and can only be given and enforced where he is. This, as we have already said, is a necessity, and it cannot be evaded by the insistence upon fictions or refinements about situs or the rights of the creditor. Of course, the debt is the properly of the creditor, and because it is, the law seeks to subject it, as it does other property, to the payment of his creditors. If it can be done in any other way than by process against and jurisdiction of his debtor, thai way does not occur to us. Besides the proposition which we have discussed there are involved in the decision of the Sharitl case the propositions that a debt may have a situs where it is payable, and thai it cannot be made migra- tors by the debtor. The latter was probably expressed as a con- Bequence of the primary proposition and ■■'> Atl. 147; M. & O. R. R. v. Barnhill, 91 Tenn. 395, 19 8. W. 21 ; and see Wyeth II. &. M. Co. v. Lang, 127 Mo. 242, 29 S. W. loio.— Ed. 424 EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. [CHAP. III. tain of the expedition were then to proceed to the Zambesi. The plain- tiff had been engaged principally as guide, on account of his knowledge of the interior. He was to receive a certain salary, to commence from the time the expedition arrived at Walwich Bay ; £5 were to be paid him for expenses to Cape Town, and Steineker had also received £100 for the expenses of the members of the expedition at Cape Town. At the latter place Steineker dismissed the plaintiff from the company's service, without making these payments, and he, alleging he was about to bring an action against the company for wrongful dismissal, now made the present application. Neither the plaintiff nor Steineker was domiciled here. 1 De Villiers, C.J. This matter was brought before me in the course of last week in the form of an application to restrain the respondent company from removing the 160 cases which are now at the docks, on the ground that it is the intention of the applicant to bring an action for damages for breach of contract. I at once refused to make any order on such an application, because the fact that goods belonging to the respondent are in this Colony gives the applicant no right to arrest these goods. The form of the application has now been altered, and the arrest of the goods is sought on the grounds that the applicant wishes to obtain jurisdiction by means of attachment, and that the at- tachment is really for the purpose of founding jurisdiction in this court. The question now to be determined is whether this court ought, at the instance of a foreigner not resident in this Colon}-, to attach property belonging to another non-resident foreigner, for the purpose of found- ing jurisdiction in an action intended to be instituted here for the pur- pose of recovering damages for the breach of a contract entered into in a foreign countrv. The question has been somewhat complicated by the further question whether the contract, although entered into in Ger- many, is not one which must be performed in this Colony ; but it is clear, from the applicant's own affidavit, that he was engaged to per- forin certain services in Ovampoland, and other native territories in the interior of Africa which are admitted to be beyond the jurisdiction of this court. The expedition started from Hamburg, and the fact that the starting-point in Africa is Walwich Bay, which is within the Colony, does not justify the court in the holding that the contract is to be performed within the jurisdiction. The same remark applies to the circumstance, that a portion of the applicant's travelling expenses was to be paid upon the arrival of the expedition in Cape Town. The ex- pedition was to use certain ports of this Colony, as ports of lading, for the purpose of reaching its ultimate destination, which was the interior of Africa, where the whole of its business was to be carried on. The alleged breach of contract consists, not in refusing to pay the small sum payable on arrival in Cape Town, but in dismissing the applicant altogether, and preventing him from joining the expedition into the in- terior. The 30th section of the Charter of Justice enacts that the Su- 1 Arguments of counsel are omitted. — Ed. SECT. III.] EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. 425 preme Court " shall have cognizance of all pleas, and jurisdiction in all causes, whether civil, criminal, or mixed, arising within the said Colonv, with jurisdiction over our subjects, and all other persons whomsoever, residing and being within the said Colony, in as full and ample a man- ner and to all intents and purposes, as the Supreme Court now existing within the said Colon}' now hath or can lawfully exercise the same." It has never been understood in this court that this section excludes the jurisdiction acquired over persons, not domiciled in this Colony, by means of an attachment of their person or property ad fundandam (or to use Voet's expression, which more correctly expresses the mod- ern practice, ad firman dam) jurisdict i one m. But I am not aware of a single case in this court, in which such an attachment has been issued, for the purpose of establishing a jurisdiction, for which no other legal ground existed. In the case of Hornblow v. Fotheringham (1 Menzies, 365), Menzies, J., expressed grave doubt whether the court should use its process of arrest, at the instance of a peregrinus, in order to create a jurisdiction which, without such arrest, it would not possess. In Heinaman v. Jenkins (2 Searle, 10), Bell, J., discharged a writ of arrest which had been granted against an American ship, calling at the port of Table Bay, in respect of a contract entered into at New York, to be fulfilled in Melbourne. It is true that the arrest in that case had been made under the 8th Rule of court, and that the learned judge at first decided to discharge the arrest upon grounds, which are not supported by the terms of the Rule, or by the invariable practice of the court, but upon the simple question of jurisdiction his final decision certainty did not support the present applicant's contention. In Wilhelm v. Francis (Buchanan's Rep., 1876, p. 216), where the plaintiff and defendant re- sided out of the jurisdiction of the court, and the contract between them had been entered into beyond, and was not to be performed in the Colon}', this court refused to order the attachment of property for the purpose of founding jurisdiction. Two cases have been cited which at first sight might appear to support the applicant's contention, but when closely examined they will be found not to have any real application. In Dunell v. Van der Plank (3 Menz. 112), the headnote states that arrest of a ship to found jurisdiction was "-granted at the instance of an English creditor on an English contract ; " but, from the case itself, it would appear that the plaintiffs on the record were not English cred- itors, but persons domiciled in the Colony. The defendant's counsel indeed argued that the real plaintiffs were English creditors, but the court does not appear to have adopted this view. It is true that Men- zies. J., held that the attachment ought to be granted, even if applied for by the plaintiffs as attorneys for the English creditors ; but this was not the true ground of the decision, and his dictum is not quite consistent with the view expressed by him in tin' previous case of Hornblow v. Fotheringham, In Poultney '•. Van San ten (Buch. Rep., 1874, p. 7i!), a rule was made absolute attaching the proceeds of the sale of an abandoned ship, pending an action by a passenger for damages arising 426 EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. [CHAP. III. from the non-completion of the voyage from Buenos Ayres to New South Wales, the passage having been taken in Buenos Ayres. There, however, no objection was taken to the jurisdiction of this court, but, on the contrary, the defendant had submitted to the jurisdiction by tendering a certain sum as damages, with the costs incurred in this court. By applying for an order to attach property to found jurisdiction, the applicant in the present case virtually admits that without such an attachment the court would not possess sufficient jurisdiction. What, then, are the grounds upon which the jurisdiction of this court can be exercised, in respect of any contract over any defendant without his consent, express or implied ? The, grounds are threefold ; viz. by virtue of the defendant's domicile being here, by virtue of the contract either having been entered into here or having to be performed here, and by virtue of the subject-matter in an action in rem being situated in this Colony. If the defendant is domiciled here, the process of at- tachment is wholly unnecessary ; but, in the absence of such domicile, the invariable practice in this court has been to attach the person or the property of the defendants, for the purpose of founding jurisdiction, even where either of the two latter requisites is present. In the pres- ent case, every one of the three requisites is wanting. Ought the court then to supply the defect, by issuing its process for the attachment of property belonging to the respondent, which happens to be in the Col- ony in its transit to the interior ? Such a process was wholly unknown to the Roman law, which, however, allowed a defendant to be sued in the courts of the country where the contract was entered into, or agreed to be performed. The canon law, according to Groenewegen (ad Cod. 3, 13, 2), did not allow a person to be sued in the country of the con- tract unless found there, and this rule, he adds, " is consistent with the customs of ourselves and other nations." And in another passage (ad Cod. 3, 18) he says: "Our ancestors have deemed it unjust and con- trary to all reasons to send their sickle into the harvest of another juris- diction, under the pretext of their own country being the place where a wrong was committed, or the place where a contract was entered into, or intended to be performed." He adds : " I have no doubt whatever that this custom of ours has given rise to the modern practice of arrest- ing debtors, than which nothing is more common." The practice of arresting debtors or attaching their property in order to found jurisdic- tion was well established in Holland, in the time of Voet; but it is by no means clear to me, from the Dutch cases I have consulted, that it was ever actually exercised where the contract had been entered into and was to be performed elsewhere than in Holland. In actions in rem it was of course a common practice to attach property situate in Hol- land for the purpose of confirming jurisdiction. In regard to this Colony having regard to the terms of the 30th section of the Charter of Justice, and to the practice of modern nations, I am of opinion that jurisdiction ought not to be assumed by this court, in cases where not SECT. III.] HAKEIS V. BALK. 427 one of the requisite grounds which I have enumerated is present. In England the process of attachment to found jurisdiction is unknown, but the jurisdiction assumed by the courts is wider than in any other country. I doubt, however, whether even in England jurisdiction would be exercised in a case like the present. In Cookney v. Anderson (31 Beav. 452), a bill was filed in England to administer the trusts of a Scotch creditor's deed, under which a mining concern in Scotland was to be carried on by a trustee. All the parties except the plaintiff were domiciled in Scotland, but an order had been obtained to serve the bill there. The defendants appeared and demurred to the jurisdiction. The demurrer was allowed by Sir John Romilly, Master of the Rolls, and his decision was affirmed by Lord Westbury, Lord Chancellor. " I think," said the Master of the Rolls, " the principles which govern the jurisdiction of the court over parties to contracts is analogous to those of the civil law, which, as far as I am aware, have been adopted by all modern nations. They are described by all writers to consist of three circumstances, any one of which will give jurisdiction to the tribunals of the country to take cognizance of the matter. The first is, where the domicile of the defendant is within the jurisdiction of the court. The second is where the subject-matter is situated within the jurisdiction of the court. And the third is where the contract in question was entered into within the jurisdiction of the court." He then points out the in- convenience arising from the difficulty of ascertaining the Scotch law in an English court, and of enforcing the mandates of the court against a person domiciled in Scotland, and continues thus, " It would be, as I apprehend, an unprecedented event in the records of this court, if two foreigners should enter into a contract relating to foreign affairs to be performed in their own country, that this court would allow one of them to sue the other with reference to that contract in the English tribu- nals. . . . The forum domicilii, the forum rei sitae, and forum loci contractus are all wanting, and I can find no case or authority which would maintain such an exercise of the jurisdiction of this court." But, quite independently of the English practice, I am satisfied, for the reasons already given, that the present is not a case in which the court should issue its process for the attachment of a foreigner's prop- erty for the purpose of confirming or establishing jurisdiction over him. The application must therefore be refused with costs. 1 HARRIS v. BALK. Suprkme Couki "i nil. United States. 1905. Reported 198 U. S. 215.] TnE facts are as follows : The plaintiff in error, Harris, was a resident of North Carolina at the time of the commencement of this action in 189G, and prior to that time was indebted to the defendant in error, Balk, also u resident of North Carolina, in the sum of $180, for money borrowed from Balk by Harris during the year 1896, which Harris verbally prom- i Ace. Blaine v. Colonial Marine Assurance Co., 1 Jnta, 402; Wilhelm v. Francis, 6 Buchanan, 216. And see to the i effect [in poiial Ottoman Bank v. Richardson (Mar enl< % L893 , 21 CI met. 112. Kl>. 428 HARRIS V. BALK. [CHAP. III. ised to repay, but there was no written evidence of the obligation. Durino- the year above mentioned one Jacob Epstein, a resident of Baltimore, in the State of Maryland, asserted that Balk was indebted to him in the sum of over $300. In August, 1896, Harris visited Baltimore for the purpose of purchasing merchandise, and while he was in that city temporarily on August 6, 1896, Epstein caused to be issued out of a proper court in Baltimore a foreign or non-resident writ of attachment against Balk, attaching the debt due Balk from Harris, which writ the sheriff at Baltimore laid in the hands of Harris, with a summons to appear in the court at a day named. With that at- tachment, a writ of summons and a short declaration against Balk (as provided by the Maryland statute) were also delivered to the sheriff and by him set, up at the court house door, as required by the law of Mary- land. Before the return day of the attachment writ Harris left Baltimore and returned to his home in North Carolina. He did not contest the garnishee process, which was issued to garnish the debt which Harris owed Balk. After his return Harris made an affidavit on August 11, 1896, that he owed Balk $180, and stated that the amount had been attached by Epstein of Baltimore, and by his counsel in the Maryland proceeding Harris consented therein to an order of condemnation against him as such garnishee for $180, the amount of his debt to Balk. Judg- ment was thereafter entered against the garnishee and in favor of the plaintiff. Epstein, for $180. After the entry of the garnishee judgment, condemning the $180 in the hands of the garnishee, Harris paid the amount of the judgment to one Warren, an attorney of Epstein, residing in North Carolina. On August 11, 1896, Balk commenced an action against Harris before a justice of the peace in North Carolina, to recover the $180 which he averred Harris owed him. The plaintiff in error, by way of answer to the suit, pleaded in bar the recovery of the Maryland judgment and his payment thereof, and contended that it was conclusive against the defendant in error in this action, because that judgment was a valid judgment in Maryland, and was therefore entitled to full faith and credit in the courts of North Carolina. This contention was not allowed by the trial court, and judgment was accordingly entered against Harris for the amount of his indebtedness to Balk, and that judgment was affirmed by the Supreme Court of North Carolina. The ground of such judgment was that the Maryland court obtained no juris- diction to attach or garnish the debt due from Harris to Balk, because Harris was but temporarily in the State, and the situs of the debt was in North Carolina. Peckham, J. The State court of North Carolina has refused to give any effect in this action to the Maryland judgment ; and the Federal question is, whether it did not thereby refuse the full faith and credit to such judgment which is required by the Federal Constitution. If the Maryland court had jurisdiction to award it, the judgment is valid and entitled to the same full faith and credit in North Carolina that it has in Maryland as a valid domestic judgment. SECT. III.] HARRIS V. BALK. 429 The defendant in error contends that the Maryland court obtained no jurisdiction to award the judgment of condemnation because the garnishee, although at the time in the State of Maryland, and personally served with process therein, was a non-resident of that State, only cas- ually or temporarily within its boundaries ; that the situs of the debt due from Harris, the garnishee, to the defendant in error herein was in North Carolina, and did not accompany Harris to Maryland ; that, con- sequently, Harris, though within the State of Maryland, had not pos- session of any property of Balk, and the Maryland State court therefore obtained no jurisdiction over any property of Balk in the attachment proceedings, and the consent of Harris to the entrv of the judgment was immaterial. The plaintiff in error, on the contrary, insists that, though the garnishee were but temporarily in Maryland, yet the laws of that State provide for an attachment of this nature, if the debtor, the garnishee, is found in the State and the court obtains jurisdiction over him by the service of process therein ; that the judgment, condemning the debt from Harris to Balk, was a valid judgment, provided Balk could himself have sued Harris for the debt in Maryland. This, it is asserted, he could have done, and the judgment was therefore entitled to full faith and credit in the courts of North Carolina. The cases holding that the State court obtains no jurisdiction over the garnishee if he be but temporarily within the State, proceed upon the theory that the situs of the debt is at the domicil either of the creditor or of the debtor, and that it does not follow the debtor in his casual or temporary journey into another State, and the garnishee has no possession of any property or credit of the principal debtor in the foreign State. We regard the contention of the plaintiff in error as the correct one. The authorities in the various State courts upon this question are not at all in harmony. They have been collected by counsel, and will be found in their respective briefs, and it is not necessary to here enlarge upon them. Attachment is the creature of the local law ; that is, unless there is a law of the State providing for and permitting the attachment it can- not be levied there. If there be a law of the State providing for the attachment of the debt, then if the garnishee be found in that State, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that State. We do not see how the question of jurisdiction velnon can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the State where the attachment is issued. Power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues. Blackstone y. Miller, 188 V. S. 189, 20G. If, while temporarily there, his creditor might sue him there and recover the debt, then he is liable 430 HARRIS V. BALK. [CHAP. III. to process of garnishment, no matter where the situs of the debt was originally. We do not see the materiality of the expression tk situs of the debt," when used in connection with attachment proceedings. If by situs is meant the place of the creation of the debt, that fact is im- material. If it be meant that the obligation to pay the debt can only be enforced at the situs thus fixed, we think it plainly untrue. The ob- ligation of the debtor to pay his debt clings to and accompanies him wherever he goes. He is as much bound to pay his debt in a foreign State when therein sued upon his obligation by his creditor, as he was in the State where the debt was contracted. We speak of ordinary debts, such as the one in this case. It would be no defence to such suit for the debtor to plead that he was only in the foreign State casu- ally or temporarily. His obligation to pay would be the same whether he was there in that way or with an intention to remain. It is nothing but the obligation to pay which is garnished or attached. This obliga- tion can be enforced by the courts of the foreign State after personal ser- vice of process therein, just as well as by the courts of the domicil of the debtor. If the debtor leave the foreign State without appearing, a judgment by default may be entered, upon which execution may issue, or the judgment may be sued upon in any other State where the debtor mio-ht be found. In such case the situs is unimportant. It is not a question of possession in the foreign State, for possession cannot be taken of a debt or of the obligation to pay it, as tangible property might be taken possession of. Notice to the debtor (garnishee) of the commencement of the suit, and notice not to pay to his creditor, is all that can be given, whether the garnishee be a mere casual and tempo- rary comer, or a resident of the State where the attachment is laid. His obligation to pay to his creditor is thereby arrested and a lien created upon the debt itself. Gaboon v. Morgan, 38 Vt. 234, 236 ; National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 483. We can see no reason why the attachment should not be thus laid, provided the creditor of the garnishee could himself sue in that State and its laws permitted the attachment. There can be no doubt that Balk, as a citizen of the State of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several States, one of which is the right to institute actions in the courts of an- other State. The law of Maryland provides for the attachment of credits in a case like this. See sections 8 and 10 of Article 9 of the Code of Public General Laws of Maryland, which provide that, upon the proper facts being shown (as stated in the article), the attachment may be sued out against lands, tenements, goods, and credits of the debtor. Section 10 particularly provides that " Any kind of property or credits belong- ing to the defendant, in the plaintiff's own hands, or in the hands of anv one else, may be attached ; and credits may be attached which shall not then be due." Sections 11, 12, and 13 of the above-mentioned SECT. III.] HARRIS V. BALK. 431 article provide the general practice for lev vino- the attachment and the proceedings subsequent thereto. Where money or credits are attached the inchoate lien attaches to the fund or credits when the attachment is laid in the hands of the garnishee, and the judgment condemning the amount in his hands becomes a personal judgment against him. Buschman v. Hanna, 72 Md. 1. 5, 6. Section 34 of the same Maryland Code provides also that this judgment, of condemnation against the garnishee, or payment by him of such judgment, is pleadable in bar to an action brought against him by the defendant in the attach- ment suit for or concerning the property or credits so condemned. It thus appears that Balk could have sued Harris in Maryland to re- cover his debt, notwithstanding the temporary character of Harris' stay there; it also appears that the municipal law of Maryland permits the debtor of the principal debtor to be garnished, and therefore if the court of the State where the garnishee is found obtains jurisdiction over him. through the service of process upon him within the State, then the judgment entered was a valid judgment. See Minor on Conflict of Laws, section 125, where the various theories regarding the subject are stated and many of the authorities cited. He there cites many cases to prove the correctness of the theory of the validity of the judgment where the municipal law permits the debtor to be garnished, although his being within the State is but temporary. See pp. 289, 290. This is the doc- trine which is also adopted in Morgan v. Neville, 74 Pa. St. 52, by the Supreme Court of Pennsylvania, per Agnew. J., in delivering the opin- ion of that court. The same principle is held in Wyeth Hardware &c. Co. v. Lano-, 127 Mo. 242, 247; in Lancashire Insurance Co. /•. Corbetts, 165 111. 592^ and in Harvey v. Great Northern Ky. Co., 50 Minn. 405, 406, 407; and to the same effect is Embree v. Hanna, 5 Johns. (N. Y.) 10l'; also Savin v. Bond. 57 Md. 228. where the court held that the at- tachment was properly served upon a party in the District of Columbia while he was temporarily there; that as his debt to the appellant was payable wherever tie was found, and process had been served upon him in the District of Columbia, the Supreme Court of the District had unquestioned jurisdiction to render judgment, and the same having been paid there was no error in granting the prayer of the appellee that such judgment was conclusive. The case in 188 N. Y. 209, Douglass v. In- surance Co., is not contrary to this doctrine. The question there was not as to the temporary character of the presence of the garnishee in the State of Massachusetts, but, as the garnishee was a foreign corpora- tion, it was held that it was not within the State of Massachusetts so as to be liable to attachment by the service upon an agent of the company within that State. The general principle hud down in Embree v. Hanna, 5 .Johns. (N. Y.) 101 , was recognized as correct. There are, as we have said, authorities to the contrary, and they cannot be reconciled. It seems to us, however, that the principle decided in Chicago, R. 1. &c. Ky. Co. v. Sturm, 171 U. S. 710, recognizes the jurisdiction, although in that case it appears that the presence of the garnishee was not merely 432 HAKRIS V. BALK. [CHAP. III. a temporary one in the State where the process was served. In that case it was said : " ' All debts are payable everywhere, unless there be some special limitation or provision in respect to the payment ; the rule being that debts as such have no locus or situs, but accompany the creditor everywhere, and authorize a demand upon the debtor eveiywhere.' 2 Parsons on Contracts, 8th ed., 702 (9th ed., 739). The debt involved in the pending case had no ' special limitation or provision in respect to payment.' It was payable generally, and could have been sued on in Iowa, and therefore was attachable in Iowa. This is the principle and effect of the best considered cases, — the inevitable effect from the na- ture of transitory actions and the purpose of foreign attachment laws if we would enforce that purpose." The case recognizes the right of the creditor to sue in the State where the debtor may be found, even if but temporarily there, and upon that right is built the further right of the creditor to attach the debt owing by the garnishee to his creditor. The importance of the fact of the right of the original creditor to sue his debtor in the foreign State, as affecting the right of the creditor of that creditor to sue the debtor or garnishee, lies in the nature of the attachment proceeding. The plaintiff, in such proceeding in the foreign State, is able to sue out the attachment and attach the debt due from the orarnishee to his (the garnishee's) creditor, because of the fact that the plaintiff is really in such proceeding a representative of the creditor of the garnishee, and therefore if such creditor himself had the right to commence suit to recover the debt in the foreign State his representative has the same right, as representing him, and may garnish or attach the debt, provided the municipal law of the State where the attachment was sued out permits it. It seems to us, therefore, that the judgment against Harris in Mary- land, condemning the $180 which he owed to Balk, was a valid judg- ment, because the court had jurisdiction over the garnishee by personal service of process within the State of Maryland. It ought to be and it is the object of courts to prevent the payment of any debt twice over. Thus if Harris, owing a debt to Balk, paid it under a valid judgment against him, to Epstein, he certainly ought not to be compelled to pay it a second time, but should have the right to plead his payment under the Maryland judgment. It is objected, how- ever, that the payment by Harris to Epstein was not under legal com- pulsion. Harris in truth owed the debt to Balk, which was attached by Epstein. He had, therefore, as we have seen, no defence to set up against the attachment of the debt. Jurisdiction over him personally had been obtained by the Maryland court. As he was absolutely with- out defence, there was no reason why he should not consent to a judg- ment impounding the debt, which judgment the plaintiff was legally entitled to, and which he could not prevent. There was no merely voluntary payment within the meaning of that phrase as applicable here. But most rights may be lost by negligence, and if the garnishee were guilty of negligence in the attachment proceeding, to the damage of SECT. III.] HARRIS V. BALK. 433 Balk, he ought not to be permitted to set up the judgment as a defence. Thus it is recognized as the duty of the garnishee to give notice to his own creditor, if he would protect himself, so that the creditor mav have the opportunity to defend himself against the claim of the person suing out the attachment. This duty is affirmed in the case above cited of Morgan v. Neville, 74 Pa. St. ,'r2, and is spoken of in Railroad Co. v. Sturm, sxipra, although it is not therein actually decided to be neces- sary, because in that case notice was given and defence made. "While the want of notification by the garnishee to his own creditor may have no effect upon the validity of the judgment against the garnishee (the proper publication being made by tiie plaintiff), we think it has and ought to have an effect upon the right of the garnishee to avail himself of the prior judgment and his payment thereunder. This notification by the garnishee is for the purpose of making sure that his creditor shall have an opportunity to defend the claim made against him in the attachment suit. Fair dealing requires this at the hands of the gar- nishee. In this case, while neither the defendant nor the garnishee appeared, the court, while condemning the credits attached, could not, by the terms of the Maryland statute, issue the writ of execution unless the plaintiff gave bond or sufficient security before the court awarding the execution, to make restitution of the money paid if the defendant should, at any time within a year and a day, appear in the action and show that the plaintiff's claim, or some part thereof, was not due to the plaintiff. The defendant in error, Balk, had notice of this attachment, certainly within a few days after the issuing thereof and the entry of judgment thereon, because he sued the plaintiff in error to recover his debt within a few days after his (Harris') return to North Carolina, in which suit the judgment in Maryland was set up by Harris as a plea in bar to Balk's claim. Balk, therefore, had an opportunity for a year and a day after the entry of the judgment to litigate the question of his lia- bility in the Maryland court and to show that he did not owe the debt, or some part of it, as was claimed by Epstein. He, however, took no proceedings to that end, so far as the record shows, and the reason mav be supposed to be that he could not successfully defend the claim, be- cause he admitted in this case that he did, at the time of the attachment proceeding, owe Epstein some $344. Generally, though, the failure on the part of the garnishee to give proper notice to his creditor of the levying of the attachment would be such a neglect of duty on the part of the garnishee which he owed to his creditor as would prevent his availing himself of the judgment in the attachment suit as a bar to the suit of his creditor against himself, which might therefore result in his being called upon to pay the debt twice. The judgment of the Supreme Court of North Carolina must be re- versed and the cause remanded for further proceedings not inconsistent with the opinion of this court. Reversed. Mr. Justice Harlan and Mr. Justice Day dissented. 28 454 LE MESURIER V. LE MESURIER. [CHAP. III. TODESCO v. DUMONT. Civil Tribunal of the Seine. 1890. [Reported 18 Clunet, 559.] The Court. Todesco, an Austrian subject domiciled at Vienna, alleges that Duinout, a German without known domicile at Paris, residing in London, should be ordered to pay him 44,700.95 francs, the amount of a note made by Dumont to Todesco, dated Augsburg, March 9, 1876, registered at Paris, Aug. 16, 1889. Todesco further prays the court to validate the garnishment made by him upon this note, on Betzold, a banker of Paris, Aug. 16, 1889. Incidentally Todesco moves that the question of validation be continued until a competent court has passed on the validity of the principal obliga- tion. Dumont pleads to the jurisdiction of this court, on the ground that the parties are foreigners, and the obligation was contracted in another country. Though the court is incompetent in such a case to determine, as between strangers, the existence of the obligation, it is on the con- trary competent to pass upon the legality of an attachment or of a levy of execution resulting from a garnishment made within its juris- diction. It ought always to grant a continuance to the attaching creditor to enable him to prove his claim before a competent court, on penalty, in case of failure to do so, of nullity of the whole process. On these grounds the court has jurisdiction only of the question of the validity of the garnishment. A continuance is granted for six months from this date, within which time, on penalty of nullity, Todesco shall sue said Dumont, on the principal obligation, before a court of competent jurisdiction. SECTION TV. jurisdiction for divorce. LE MESURIER v. LE MESURIER. Judicial Committee of the Privy Council. 1895. [Reported [1895] Appeal Cases, 517.] Appeal from the Supreme Court of Ceylon, which dismissed appel- lant's libel for divorce on the ground of lack of jurisdiction. At the time of the marriage (which was solemnized in England) appel- SECT. IV.] LE MESURIEB V. LE MESURIER. 435 lant, the husband, was and has since remained a resident of Ceylon, but was then and has since remained domiciled in England. The respondent was a Frenchwoman. 1 The judgment of their Lordships was delivered by Lord Watson. When carefully examined, neither the English nor the Scottish decisions are, in their Lordships' opinion, sufficient to establish the proposition that, in either of these countries, there exists a recog- nized rule of general law to the effect that a so-called matrimonial domicile gives jurisdiction to dissolve marriage. Tollemache v. Tollemache, 1 Sw. & Tr. 557, which was decided by three judges in 1859, shortly after the passing of the Divorce Act, appears to be an authority to the contrary. The learned judges sustained the jurisdiction of the English court, which was the forum of the husband's domicile, and disregarded as incompetent a decree of the Court of Session dissolving his marriage, although he had a matrimonial domicile in Scotland, where he had bona fide resided for four years with his wife, neither casually nor as a traveller. Then in Brodie v. Brodie, 2 Sw. & Tr. 259, in the year 1861, three learned judges decided the opposite, holding that residence of that kind, which had been found in Tollemache v. Tollemache, to be insufficient to give jurisdiction to a Scottish court where the domicile was Eng- lish, was nevertheless sufficient to give jurisdiction to themselves where the domicile was Australian. In Wilson v. Wilson, L. R. 2 P. & D. 435, jurisdiction was sustained by Lord Penzance upon the ground that the petitioner had acquired an Emglish domicile, with an expression of opinion by his Lordship that such domicile ought to be the sole ground of jurisdiction to dissolve marriage. In Niboyet v. Niboyet, 4 P. D. 1, Sir Robert Phillimore expressed a similar opin- ion, and dismissed the suit of the petitioner, who had a matrimonial domicile in England which fully answered the definition of such domicile given either in Brodie v. Brodie or in Pitt v. Pitt, 1 Court Sess. Cas. 3d Series, 106, 4 Macq. App. Cas. 627. His decision was, no doubt, reversed in the Court of Appeal; but it had the sup- port of the present Master of the Rolls, and their Lordships have already pointed out that the judgment of the majority was mainly, if not altogether, based upon a reason which will not bear scrutiny. The Scottish decisions appear to their Lordships to be equally inefficient to show that a matrimonial domicile is a recognized ground of divorce jurisdiction. So far as they go, they are con- sistent enough hut the doctrine appears to have had a very brief existence, because the three cases in which it was applied all occurred between the 7th of February and the 14th of December in the year 1862. Although, owing to the course taken by the appellant's coun- sel in Pitt v. Pitt, 1 Court Sess. Cas. 3d Series, 106, 4 Macq. App. Cas. 627, the House of Lords had not an opportunity of expressly 1 This short Btatemenl "f Facta is substituted for that of the reporter. Arguments of counsel and part "! the opinion are omitted. — Ed. 436 LE MESURIER V. LE MESURIER. [CHAP. IIL deciding the point, there can be little doubt that the approval of the course adopted by counsel, which was openly expressed by Lord Westbury, has had the effect of discrediting the doctrine in Scot- land; and it is impossible to affirrn that the Court of Session would now give effect to it. The eminent judge who, in 1862, was the first to five a full and clear exposition of the doctrine of matrimonial domicile, spoke of it, in the year 1882, not as a doctrine accepted in the law of Scotland, but as matter of speculation. It is a circumstance not undeserving of notice that the learned judges, whether English or Scottish, who have expressed judicial opinions in favor of a matrimonial domicile, have abstained from reference to those treatises on international law which are generally regarded as authoritative, in the absence of any municipal law to the contrary. The reason for their abstinence is probably to be found in the circumstance that nothing could be extracted from these sources favorable to the view which they took. Their Lordships are of opinion that in deciding the present case, on appeal from a colony which is governed by the principles of the Roman-Dutch law, these authorities ought not to be overlooked. Huber (Lib. 1, tit. 3, s. 2, De' Confl. Leg.) states the rule of inter- national law in these terms: "Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium praejudieetur." That passage was cited with appro- bation by Lord Cranworth and Lord Westbury in Shaw v. Gould/ L. R. 3 H. L. 72, 81. To the same effect, but in language more pointed, is the text of Rodenburg (De Stat. Divers, tit. 1, c. 3, s. 4), cited in the same case by Lord Westbury: ; ' Unicum hoc ipsa rei natura ac necessitas invexit, ut cum de statu et conditione hominum quaeritur, uni solummodo Judici, et quidem Domicilii, universum in ilia jus sit attributum." The same rule is laid down by Bar, the latest Continental writer on the theory and practice of international private law. He says (sect. 173, Gillespie's Translation, p. 382), " that in actions of divorce — unless there is some express enactment to the contrary — the judge of the domicile or nationality is the only competent judge." And he adds: "A decree of divorce, there- fore, pronounced by any other judge than a judge of the domicile or nationality, is to be regarded in all other countries as inoperative." There can, in their Lordships' opinion, be no satisfactory canon of international law, regulating jurisdiction in divorce cases, which is not capable of being enunciated with sufficient precision to ensure practical uniformity in its application. But any judicial definition of matrimonial domicile which has hitherto been attempted has been singularly wanting in precision, and not in the least calculated to- produce a uniform result. The definitions given in Brodie v. Brodie, 2 Sw. & Tr. 259, and in Pitt v. Pitt, 1 Court Sess. Cas. 3d Series, 106, 4 Macq. App. Cas. 627, appear to their Lordships to be equally SECT. IV.] LE MESURIER V. LE MESUEIER. 437 open to that objection. Bona fide residence is an intelligible expres- sion, if, as their Lordships conceive, it means residence which has not been resorted to for the mere purpose of getting a divorce which was not obtainable in the country of domicile. Residence which is "not that of a traveller" is not very definite; but nothing can be more vague than the description of residence which, not being that of a traveller, is not to be regarded as "casual." So, also, the place where it is the duty of the wife to rejoin her husband, if they happen to be living in different countries, is very indefinite. It may be her conjugal duty to return to his society although he is living as a traveller, or casually, in a country where he has no domicile. Neither the English nor the Scottish definitions, which are to be found in the decisions already referred to, give the least indication of the degree of permanence, if any, which is required in order to constitute matri- monial domicile, or afford any test by which that degree of perma- nence is to be ascertained. The introduction of so loose a rule into the jus gentium would, in all probability, lead to an inconvenient variety of practice, and would occasion the very conflict which it is the object of international jurisprudence to prevent. Their Lordships attach great weight to the consideration that the theory of matrimonial domicile for which the appellant contends has never been accepted in the court of last resort for England and Scot- land. The matter does not rest there; because the theory is not only in direct opposition to the clear opinion expressed by Lord Westbury in Pitt v. Pitt, 1 Court Sess. Cas. 3d Series, 106, 4 Macq. App. Cas. 627, but appears to their Lordships to be at variance with the principles recognized by noble and learned Lords in Dolphin v. Robins, 7 H. L. C. 390, and in Shaw v. Gould, L. R. 3 H. L. ">">. It is true that in these cases, and especially in Dolphin v. Robins, there was ground for holding that the spouses had resorted to a for- eign country and a foreign tribunal in order to escape from the law and the courts of their English domicile. But in both the inter- national principle upon which jurisdiction to dissolve a marriage depends, was considered and discussed; and the arguments addressed to their Lordships in favor of matrimonial domicile by the learned counsel for the appellant appear to them to be at variance with the weighty observations which were made by noble and learned Lords in these cases. In Dolphin u. Robins, Lord Oanworth stated that "it must be taken now as clearly established that the Scotch court has no power to dissolve an Knglish marriage, where, as in this case, the parties are not really domiciled in Scotland, but have only gone there for such a time as, according to the doctrine of the Scotch courts, gives them jurisdiction in the matter." In Shaw /•. Gould the dicta of noble and learned lords upon the point raised in lliis appeal were even more emphatic. Lords Cranworth and Westbury expressed their entire approval of the doctrine laid down by Huber and Rodenburg in those passages which have already been cited. 438 LE MESURIER V. LE MESURIER. [CHAP. III. Their Lordships did not go the length of saying that the courts of no other country could divorce spouses who were domiciled in Eng- land; but they held that the courts of England were not bound, by any principle of international law, to recognize as effectual the decree of a foreign court divorcing spouses who, at its date, had their domicile in England. The other noble and learned lords who took part in the decision of Shaw v. Gould, L. R. 3 H. L. 55, were Lords Chelmsford and Colonsay. Lord Chelmsford did not express any opinion upon the subject of matrimonial domicile. Lord Colon- say rested his judgment upon the fact that the spouses had resorted to Scotland for the very purpose of committing a fraud upon the law of their English domicile; but he did indicate an opinion that, in the absence of such fraudulent purpose, they might possibly have obtained a divorce in Scotland, after a residence in that country which was insufficient to change their domicile of succession. Their Lordships have in these circumstances, and upon these con- siderations, come to the conclusion that, according to international law, the domicile for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage. They con- cur, without reservation, in the views expressed by Lord Penzance in Wilson v. Wilson, L. R. 2 P. & D. 442, which were obviously meant to refer, not to questions arising in regard to the mutual rights of married persons, but to jurisdiction in the matter of divorce: "It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the courts of the country in which they are domiciled. Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accord- ance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another." Their Lordships will, therefore, humbly advise Her Majesty to affirm the order appealed from. The appellant must pay to the first and fourth respondents their costs of this appeal. 1 1 The doctrine that jurisdiction for divorce depends solely upon the domicile of the husband is now fully established in England. Shaw v. Att.-Gen., L. R. 2 P. & D. 156 ; Green v. Green, [1893] P. 89. Ace. Humphrey v. Humphrey, 33 Scot. L. R. 99. — Ed. SECT. IV.] ARMYTAGE V. ARMYTAGE. 439 ARMYTAGE v. ARMYTAGE. High Court of Justice, Probate Division. 1898. [Reported [1S98] Probate, 178.] Gorell Barnes, J. 1 This is a suit for judicial separation by Mrs. Armytage against her husband on the ground of his alleged cruelty towards her. By his answer the respondent has denied the alleged cruelty, and by an act on petition he has further pleaded that the court has no jurisdiction to entertain the suit. I have, therefore, to determine a question of fact, whether there has been cruelty by the respondent to the petitioner, and a question of law, whether the court has jurisdiction in the circumstances to entertain the suit. The second question raises a point of considerable importance in private inter- national law. The parties were married at Toorak, near Melbourne, Australia, on April 11, 1888, and there are two children of the marriage, whose custody the petitioner seeks to obtain. The respondent is by birth an Australian, and his domicile is in the colony of Victoria. He was edu- cated at Cambridge, and has been called to the English Bar. The petitioner is an Englishwoman, born in England, of parents residing at Blackheath, near London. The respondent and the petitioner be- came acquainted on board ship on the passage from this county to Melbourne, and their marriage was celebrated shortly afterwards. They cohabited in Australia and in England, and afterwards in Italy, and the occurrences which give rise to this suit took place at Florence in April and May, 1897. . . . The further facts necessary to refer to are these : The petitioner came to this country with her children on or about May 25, 1897, and she and the children have since resided under her parents' roof and at Bexliill. The respondent's solicitor on May 31, 1897, wrote on behalf of the respondent to the petitioner and her father requesting the peti- tioner to return with the children to her husband, but she declined to comply with this request. At the end of June, 1897, the respondent came to, and has since resided in, England, but I understand he has not taken up a permanent residence here, and has only come to and is remaining in England for the purpose of enforcing, and so long as may be necessar}' to determine, such rights as he may have against the petitioner with regard to the children. In the month of November, 1897, he settled the sum of £100 on each of his children, and made them wards of Court in Chancery. He thereupon applied to North, J., for an order for the custody of the children, which was met by a cross- application on the part of the petitioner. In the meantime these pro- ceedings were commenced, and the respondent was served with the citation and petition in this country. North, J., ordered the application 1 Part of the opiniou is omitted. — Ed. 440 ARMYTAGE V. ARMYTAGE. [CHA.P. III. before him to stand over until after the determination of this suit. The question to be decided, therefore, is whether or not this court can entertain a suit for judicial separation by the petitioner against the respondent in the circumstances above stated. . . . The court does not now pronounce a decree of dissolution where the parties are not domiciled in this country, except in favor of a wife de- serted by her husband, or whose husband has so conducted himself towards her that she is justified in living apart from him, and who, up to the time when she was deserted or began so to be, was domiciled with her husband in this country, in which case, without necessarily resorting to the American doctrine that in such circumstances a wife may acquire a domicile of her own in the country of the matrimonial home, it is considered that, in order to meet the injustice which might be done by compelling a wife to follow her husband from country to country, he cannot be allowed to assert for the purposes of the suit that he has ceased to be domiciled in this country. The jurisdiction to dissolve marriages was conferred upon this court by the Matrimonial Causes Act, 1857, and although that act does not expressly make domicile a test of jurisdiction, that test is applied by the court to the exercise of jurisdiction in cases of dissolution of marriage. It is de- rived from the principles of private international .law, an adherence to which is necessary, as Lord Penzance said in Wilson v. Wilson, L. R. 2 P. & M. 435, at p. 442, in order to "preclude the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another." These principles are expounded by many jurists in this and other countries. They are based on the principle that a person's status ought to depend on the law of his domi- cile, though there may be limitations and exceptions to this principle : see Dicey's Conflict of Laws, 1896, cap. 18, p. 474, et seq. (conf. Savigny, s. 362, Guthrie's translation, 2d ed. p. 148). The jurisdiction in suits other than suits for dissolution of marriage is conferred on the court by the 6th section of the act aforesaid. By other sections judicial separation is substituted for the old divorce a mensa et thoro, and a new ground for separation, namely, desertion without cause for two years and upwards, is added. Sect. 22 provides as follows : "In all suits and proceedings other than proceedings to dissolve any marriage, the said court shall proceed, and act, and give relief on prin- ciples and rules which, in the opinion of the said court, shall be as nearly as may be conformable to the principles and rules on which the Ecclesiasti- cal Courts have heretofore acted and given relief, but subject to the pro- visions herein contained, and to the rules and orders under this act," There are no special provisions of the act or rules or orders which directly affect the present question. The present suit is for judicial separation on the ground of cruelty. Before the act it would have been a suit for divorce a mensa et thoro on the same ground, and the inquiry is as to the principles and rules on which the Ecclesiastical Courts would have acted in the circumstances. The petitioner main- SECT. IV.] ARMTTAGE V. ARMYTAGE. 441 tains that the test of domicile is not applicable as in a suit for dissolu- tion of marriage, and that the Ecclesiastical Courts would have given her relief where she and her husband are both residing in England in the circumstances proved, whereas the respondent maintains that no relief would have been given because the parties are not domiciled in England, and no act of cruelty has been proved within the jurisdiction. . . . Most of the writers on private international law and the conflict of laws treat at length the question of the laws and principles upon which the dissolubility or indissolubility of marriage depends, but there is little to be found in the works of such writers on the question of jurisdiction to decree the separation or divorce a mensa et thoro of married persons who are residing but not domiciled in the country of the forum. The reasons are not far to seek. Dissolution of marriage has been permitted in some States and not in others, and has been allowed in some States on grounds different from those on which it could be obtained in others. There has been want of unanimity as to the forum which ought to take cognizance of the question of divorce, and as to the laws to be applied and the recognition to be accorded in one State to a decree of dissolu- tion of marriage pronounced in another. Persons domiciled in a coun- try where divorce has not been permitted, or only permitted on certain grounds, have, in order to obtain divorces, temporarily resided or assumed domicile in another country where divorce has been permitted or more easily obtained than in the former country. Hence numerous difficult and varied questions have arisen and been discussed in re- ported cases and by different jurists upon the question of dissolution of marriage. But in practice suits for judicial separation or divorce a mensa et thoro and restitution of conjugal rights do not appear to have given rise to similar difficulties, and, therefore, cases and discussions as to jurisdiction in these suits are not often met with. Such suits generally- occur before the tribunals of the country in which the parties are in fact domiciled, and a case like that before me was not so likely to occur in former days as at the present time, when large numbers of people are to be found residing for more or less lengthy periods away from the place of their domicile. 1 . . . I conclude from the writers to whom I have referred that most of them are disposed to consider that the courts of the country in which the parties are living, though not domiciled, ought to have the right in a matrimonial suit to afford protection to an injured party from the cruelty of the other party. Lord Hannen may possibly have had such a case in his mind when, in giving judgment in Firebrace ''. Firebrace, (1878) 4 P. D. 63, he said, " The domicile of the wife is that of the husband, and her remedy for matrimonial wrongs must be usually sought in the place of that i The learned judge here cited ami examined 1 Phil. Int. L. 382; Burge, Colon. Laws, 668 ; Bishop, Mar. & Div. b. L58 ; Guthrie's Bar's Priv. Internat. Law, 381 ; Westlake, Priv. Internat. Law. s. 47; Fraser, Hush. & Wife, 1294; Wharton, Contl. Laws, s. 210. — Ki>. 442 ARMYTAGE V. ARMYTAGE. [CHAP. III. domicile ; " but added : " It is not, however, inconsistent with this prin- ciple that a wife should be allowed in some cases to obtain relief against her husband in the tribunal of the country in which she is resident, though not domiciled." 4 P. D. at p. 67. That was a suit for resti- tution of conjugal rights where the respondent, the husband, who was domiciled in Australia, had left England before the institution of the suit, and it was held that the court had not jurisdiction over him after he left this country, and that the suit could not be maintained. Had he remained in England it would seem from the cases of Newton v. Newton, (1885) 11 P. D. 11, and Thornton V.Thornton, (1886) 11 P. D. 176, that the suit could have been maintained. In the recent case of Christian v. Christian, (1897) 78 L. T. 86, the President said that a suit for judicial separation may be founded upon matrimonial residence only as distinguished by our law from domicile. Having considered sufficiently for the purposes of the case the opin- ions of the jurists above mentioned, it is necessary that I should revert to the 22d section of the Act of 1857, which requires the court in such a suit as the present to act conformably to the principles and rules on which the Ecclesiastical Courts had theretofore acted and given relief. There are several works which deal more particularly with the juris- diction and mode of proceeding in the Ecclesiastical Courts — e.g., Burn's Ecclesiastical Law, ed. 1842, Rogers's Ecclesiastical Law, ed. 1849, Shelford's Law of Marriage and Divorce, ed. 1841, and older works, such as Godolphin's Abridgment ; but I cannot trace in them any statement upon the precise point in question, and the principles to govern it must be deduced from the general principles and practice of the courts. These are stated in general terms so far as concerns the matter under consideration by James, L. J., in his judgment above re- ferred to, see Niboyet v. Niboyet, 4 P. D. 1 at p. 3, where the jurisdiction of the Court Christian is considered, and it is pointed out that the Church and its jurisdiction had nothing to do with the original nationality or acquired domicile of the parties, that residence as distinct from casual presence on a visit or in itinere was an important element, but that residence had no connection with or little analogy to the question of a person's domicile. In my opinion, if the parties had a matrimonial home, but were not domiciled within the jurisdiction of an Ecclesiastical Court, that court would have interfered, if the parties were within the jurisdiction at the commencement of the suit, to protect the injured party against the other party in respect of the adultery or cruelty of the latter, and I can find no authority for the suggestion made by the respondent's counsel that such interference would be limited to cases where the offence com- plained of was committed within the jurisdiction. In Warrender v. Warrender, (1835) 2 CI. & E. 488, at p. 562, Lord Lyndhurst said; "The law, either in this country or in Scotland, makes no distinction in respect of the place of the commission of the offence." Although the Ecclesiastical Courts could not extinguish the mutual obligations of SECT. m.~\ ARMYTAGE V. AKMYTAGE. 443 husband and wife, they, acting pro salute animce, suspended these obli- gations in order to protect and relieve the injured party. It could make no difference, where the parties were residing within the jurisdiction, that the necessity for protection and relief arose in consequence of adultery committed by the wrong-doer while temporarily outside the jurisdiction, or of cruelty committed while the parties were temporarily outside the jurisdiction, and the apprehension of further acts of cruelty remained. If the parties were within the jurisdiction, and the necessi- ties of the case demanded that one of them should be protected against a matrimonial wrong done by the other of which the courts would take cognizance, I cannot doubt that the courts would have interfered. The case of Manning v. Manning, (1871) L. R. 2 P. & M. 223, which was relied upon by the respondent's counsel, is no authority against this view, because in that case the respondent was not within the jurisdic- tion of the court, and the petitioner was held not to be a bona fide resident in England. If the respondent's contention be correct no decree of judicial separation could be made, even in cases like Niboyet v. Niboyet, 4 P. D. 1, where the parties, though not domiciled, were resident for years in this country. Then, does the present case fall within the principles and rules upon which the courts have acted ? I think it does. The wife, an English- woman, whose domicile of origin was English, and who has resided at times in England with her husband, is forced, by the cruelty committed in Italy by her husband, a domiciled Australian, to seek the protection of her parents in England. Though legally domiciled in Australia, as a matter of fact she has been forced to separate herself from her hus- band and establish herself in a home of her own in this country. She and her husband are both within the jurisdiction. She has been re- quired to return with her children to her husband, and is afraid to do so owing to her apprehension of a repetition of the acts of cruelty which have been committed against her while they were living together abroad. It is against the repetition of apprehended acts of cruelty that the court grants its protection, and, unless the court interferes, there is nothing to prevent the husband from forcing himself upon his wife and placing her in a position in which she may be subjected to further acts of cruelty. The status of married persons within the country is recog- nized. Performance of the duties arising from the marriage tie should be required, and protection afforded against an abuse of the position resulting from that tie where necessary. Police protection is an in- adequate remedy. It may be objected that a decree of judicial separation affects the status of the parties, and that a change of status ought on principle only to be effected by the courts of the domicile. But the relief is to be given on principles and rules which, in the opinion of the court, shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts gave relief. According to those prin- ciples and rules cruelty and adultery were grounds for a sentence of 444 ARMYTAGE V. ARMYTAGE. [CHAP. III. divorce a mensa et thoro which did not dissolve the marriage, but merely suspended either for a time or without limitation of time some of the obligations of the parties. The sentence commonly separated the parties until they should be reconciled to each other. The relation of marriage still subsisted, and the wife remained a feme covert. A woman divorced by the court a mensa et thoro and living separate and apart from her husband could not be sued as a feme sole (see Lewis v. Lee, 1824, 3 B. & C. 291). The effect of the sentence was to leave the legal status of the parties unchanged. Although a sentence of judi- cial separation is to have the effect of a divorce a mensa et thoro under the old law (s. 16 of the Act of 1857), and also the further effect of placing the wife in the position of a feme sole, with respect to property which she may acquire, or which may come to or devolve upon her, from the date of the sentence and whilst the separation continues, and also for the purposes of contract and wrongs and injuries and suing and being sued during that period (ss. 25 and 26 of the Act of 1857) ; yet as the relief to be given now is to be given according to the prin- ciples and rules in force in the Ecclesiastical Courts, I am of opinion that the effect of the said ss. 25 and 26, if they affect a wife's status within the meaning of the term as applied to the principles under con- sideration, which is doubtful, is not to deprive the court of the power to grant relief in cases where it would have been granted by the Eccle- siastical Courts. It may be further objected that, as domicile is considered a test of jurisdiction in cases of dissolution of marriage, in order that the decree mav be recognized in countries other than that of the domicile, for the same reason a similar test should be applied in cases of judicial separa- tion. But the reasons which apply in the one case are not applicable to the other ; and even if the principle should be established that the courts of the country of the domicile of the parties are the only courts which can pronounce a decree of judicial separation which ought to be recognized in other countries, in my opinion, no valid reason can be urged against the courts of a country, in which a husband and wife are actually living, pronouncing a decree which will protect the one against the other so long as they remain within the jurisdiction. In the present case the wife's domicile is legally in Australia, but, as a matter of fact, she has justifiably separated herself from her husband and made her home in England, and it is in England that she now re- quires protection. He has come here and subjected himself to the jurisdiction of the courts of this country. Could anything be more unreasonable than for this court to hold that it has no power to suspend the wife's obligation to live with her husband while in this country, and leave her to proceed in the courts in Australia to protect herself against her husband in England? It may, I think, be safely laid down that the Ecclesiastical Courts would formerly, and this court will now, inter- fere to protect a wife against the cruelty of her husband, both being within the jurisdiction, when the necessities of the case require such SECT. IV.] DITSOX V. DITSOX. 445 intervention. I therefore hold that this court has jurisdiction to enter- tain this suit, and I pronounce a decree of judicial separation ill favor of the petitioner with costs. Having held that the court has jurisdic- tion to entertain the suit, I think it follows that the court has jurisdiction under the powers expressly conferred upon it by the 35th section of the said Act of 1857, and the 4th section of the Matrimonial Causes Act, 1859, to make provision for the custody of the children of the marriage ; and, as I have heard the case, it is probably more convenient that I should dispose of this matter rather than leave it for further contest in the chancery proceedings. I will hear any application relating to the children in chambers. DITSON v. DITSON. Supreme Court of Rhode Island. 1856 [Reported 4 Rhode Island, 87.] Ames, C. J. 1 It is a well-settled principle of general law upon this subject, that the tribunals of a country have no jurisdiction over a cause of divorce, wherever the offence may have occurred, if neither of the parties has an actual bona fide domicile within its territory; and this holds, whether one or both the parties be temporarily resid- ing within reach of the process of the court, or whether the defend- ant appears or not, and submits to the suit. This necessarily results from the right of every nation or State to determine the status of its own domiciled citizens or subjects, without interference by foreign tribunals in a matter with which they have no concern. Bishop on Marriage and Divorce, § 721, p. 721, 2d ed. and cases cited. We entirely agree with the judgment given by the Supreme Court of Massachusetts on this point, in the well-considered case of Hanover v. Turner, 14 Mass. 227, 231, in which both this rule, and the reason for it are stated with that precision and largeness of view, which indicate that the court fully comprehended the question before them as a question of general law; a kind of praise which cannot, with any justice, be bestowed upon many American cases upon this important and interesting subject. . . . The question raised by the case at bar, and for the decision of which in the affirmative this court is said by the Supreme Court of Massachusetts in Lyon v. Lyon, 2 Gray, 3G7, to have pronounced a decree in favor of Mrs. Lyon void upon general principles of law, is, whether the bona ji>/<; domicilation of the petitioning party in this State is sufficient to give this court jurisdiction to grant a divorce ft vinculo, although the other party to the marriage to be dissolved has never been subject to our jurisdiction, never been personally served 1 Part ot tli.' opinion only is given. — Ed. 446 DITSON V. DITSON. [CHAP. III. with notice of the petition within the State, or appeared and answered to the petition, upon constructive notice, or upon being served with personal notice of it, out of the State ? In other words, the question is, whether, as a matter of general law, a valid decree of divorce a vinculo can be passed in favor of a domiciled citizen of the State, upon mere constructive notice to the foreign or non-resident party to the marriage, against whom, or to dissolve whose marital rights over or upon the petitioner, the aid of the court is invoked? . . . It is undoubtedly true, as a common-law principle, applicable to the judgments of its courts, that they bind only parties to them, or persons in such relation to the parties and to the subject of the judg- ment, as to be deemed privies to it. The rule of this system of jurisprudence, which brings privies within the operation of the notice served upon the principals to a judgment and binds them by its effects, is founded upon quite as clear a policy, and is sanctioned by quite as complete justice, as that which renders the judgment obliga- tory upon those whom they represent. It is founded upon the great policy ut sit finis litiim, and upon the necessity, to carry out this policy, that the future and contingent representatives of the parties in relation to the subject of the judgment should be bound by it. Again, there is no system of jurisprudence, which, founded as the jurisdiction of the court is upon the personal service of the subpoena, is more special in its requisition that all parties interested should be served in the suit, in order to be bound by the decree, than that administered by the English chancery; yet even in this court, from the same policy, and upon the same necessity, the first tenant in tail, or the first person entitled to the inheritance, if there be no- tenant in tail living, or even the tenant for life, as the only repre- sentative to be found of the whole inheritance, by his appearance to the suit binds to the decree in it all those subsequently and con- tingently interested in the estate; the court, in administering this rule of representation of parties, taking care only that the repre- sentative be one whose interest in the subject of the suit is such as to insure his giving a fair trial to the question in contestation, the decision of which is to affect those who remotely or contingently take after him. Again, there is the large class of proceedings in rem, or quasi in rem, known especially to courts administering public or general law, and borrowed from thence into every system of jurispru- dence in which, the jurisdiction being founded upon the possession of the thing, the decree binds all interested in it, whether within or without the jurisdiction of the nation setting up the court, and whether personally or constructively notified of the institution or cur- rency of the proceeding. This, too, is founded upon a necessity or high expediency, since, without it, a prize or instance court, for example, could not, so scattered or concealed are the parties inter- ested, perform any of the functions for which, by the general or public law, it is set up. Proceedings of this nature must, we think, SECT. IV.] DITSON V. DITSON. 447 be familiar to the courts of Massachusetts; and probably not a day passes in which things within their jurisdiction are not, by direct attachment or garnishee process, seized, attached, condemned, and sold under their judgments, without other than constructive notice to the non-resident owners of them, in order that these courts may do justice to their own citizens, or even to alien friends, properly applying to them for relief. Here, too, necessity requires the courts to dispense with personal notice, in order to give effect to their judicial orders; since otherwise, the State might be full of the prop- erty of non-residents and aliens, applicable to all purposes except the commanding ones of justice. Without doubt, in these and other like cases, the general law in dispensing with personal notice from necessity, requires some fair approximation to it, by representation, substitution, or at least such publicity, as under the circumstances, is proper and possible, or the proceeding will be regarded as a fraud upon the rights of the absent and unprotected, — a robbery under the forms of law, and so a fraud upon law itself. It is, however, a very narrow view of the general law, it is to form a very low estimate of the wisdom which directs its administration, to suppose, that when it can do justice to those within its jurisdiction and entitled to its aid only by dispensing with personal notice to those out of it, and substituting instead what is possible for notice to them, it is powerless to do this, and so, powerless to help its own citizens or strangers within its gates, however strong may be their claims or their necessities. Such a sacrifice of substance to shadows, of the purposes to the forms of justice, might mark the ordinances of a petty municipality, but could hardly be supposed to characterize the system of general law. Now, marriage, in the sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strict- ness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than " fatherhood " or "sonship " is a contract. It is no more a contract than serfdom, slavery, or apprenticeship are con- tracts, the latter of which it resembles in this, that it is formed by con- tract. To this relation there are two parties, as to the others, two or more, interested without doubt in the existence of the relation, and so interested in its dissolution. These parties are placed by the relation in a certain relative state or condition, under the law, as are parents and children, masters and servants ; and as every nation and State has an exclusive sovereignty and jurisdiction within its own territoiy, so it has exclusively the right to determine the domestic and social condition of the person domiciled within that territory. It ma}', except so far as checked by constitution or treaty, create by law new rights in, or im- pose new duties upon, the parties to these relations, or lessen both rights and duties, or abrogate them, and so the legal obligation of the- 448 DITSON V. DITSON. [CHAP. III. relation which involves them, altogether. This it may do, with the exception above stated, as in some relations, by law, when it wills ; declaring that the legal relation, of master and slave, for instance, shall cease to exist within its jurisdiction, or for what causes or breaches of duty in the relation, this, or the legal relation of husband and wife, or of parent and child, may be restricted in their rights and duties or alto- gether dissolved through the judicial intervention of its courts. The right to govern and control persons and things within the State, sup- poses the right, in a just and proper manner, to fix or alter the status of the one, and to regulate and control the disposition of the other ; nor is this sovereign power over persons and things lawfully domiciled and placed within the jurisdiction of the State diminished by the fact that there are other parties interested through some relation, in the status of these persons, or by some claim or right, in those things, who is out of the jurisdiction, and cannot be reached by its process. No one doubts this, as a matter of general law, with regard to the other do- mestic relations, and what special reason is there to doubt it, as to the relation of husband and wife ? The slave who flees from Virginia to Canada, — no treat}' obliging his restoration — or who is brought by his master thence to a free State of the Union — no constitutional pro- vision enforcing his return — finds his status before the law in the new jurisdiction he has entered changed at once ; and no one dreams that this result of a new domicile and the new laws of it, is less legally certain and proper as a matter of general law, because the master is out of the new jurisdiction of his slave, and is not, or cannot be cited to appear and attend to some formal ceremony of emancipation. It is true that slaver}- is a partial and peculiar institution, not generally recognized by the policy of civilized nations ; whereas marriage, in some form, is coextensive with the race, and, as a relation, is nowhere so restrictive and so binding in its obligations as amongst the most truly civilized portions of it. Yet each nation and state has its peculiar law and pol- icy as to the mode of forming, and the mode and causes for judicially dissolving this last relation, according to its right ; and all that other States or nations, under the general law which pervades all Christen- dom can properly demand is, that in the exercise of its clear right in this last respect as to its own citizens and subjects, it should pay all, and no more attention, than is practicable to the competing rights and interests of their citizens and subjects. It should give the non-residents and foreigners, parties to such a relation of general legal sanctity as to persons of the like description interested in property within its territory, the rights to which are also evervwhere recognized, at least such notice by publicity before it proceeds to judicial action, as can, under such circumstances, be given consistently with any judicial action at all effi- cient for the purposes of justice. To say that the general law inexora- bly demands personal notice in order to such action, or, still worse, demands that all parties interested in a relation or in property subject to a jurisdiction should be physically within that jurisdiction, is to lay SECT. IV.] DITSON V. DITSON. 449 down a rule of law incapable of execution, or to make the execution of laws dependent not upon the claims of justice, but upon the chance locality, or, what is worse, upon the will of those most interested to defeat it. It is evident, upon examining the statutes of the different States of the Union, that legislation vesting jurisdiction for divorce in their courts has followed no principle of general law in this respect whatsoever ; some statutes making the jurisdiction, or supposing it to depend upon the place of the contract, some upon the place of the delictum,^ and some, as in this State, and as they should do, upon the domicile of the wronged and petitioning party. The courts of each State exercise, as they must, jurisdiction upon the principles laid down for them by stat- ute ; and have very little occasion, unless called upon to review the decree of some neighboring State, to attend to or consider any general principles pertaining to the subject. Engaged in this latter task, they are very apt to confound the statute principles of jurisdiction, to which they are accustomed, with the principles of general law relating to it; notwithstanding the latter so obviously grow out of the right of every State to regulate, in some cases by law, and in others by proper judi- cial action, according to the nature of the subject, the social condition or status, as it is called, of all persons subject to its jurisdiction. A singular instance of forgetfulness of this principle of ''State sover- eignty " is afforded by the case of Hull v. Hull, 2 Strobhart's Equity Appeals, 174 ; in which the right of the State of Connecticut to dissolve through its courts under the law of that State, a marriage there formed between two of its own citizens, upon the petition of a wife whose hus- band had deserted her and her children and settled in South Carolina, constructive notice only having been given to the absent and abscond- ing husband, was put upon the ground that dissolution of the contract of marriage upon such notice was part of the law of the place of the contract and so part of the contract itself. The courts of that State, it seems, whilst forgetting the State rights of their northern sister, stren- uously insist upon the rights of their own ; holding, according to the exploded notion of Lolley's Case, or rather of McArthy v. McArthy, that a South Carolina marriage cannot be dissolved out of the State of South Carolina, although any other may. In Irby v. Wilson, 1 Dev. & Bat. Eq. R. 568, 576, under similar circumstances, except that in this case the wile was the deserting, and the husband thepetitioning party, the Supreme Court of North Carolina held that a Tennessee divorce was void, upon the ground hinted at in Lyon v. Lyon, sup., to wit, that such a proceeding being between parties, and the wife having been constructively notified only, alt hough such notice was all that was possi- ble, the courts of Tennessee cou M not alter by way of redress the Btatosof one of its own citizens become burdensome to him by the alleged cause- less and continued desertion of his wile. Upon the same principle, and for the same reason, of course, North Carolina could not relieve from the relation its citizen, the wife, although her husband might have com- 450 DITSON V. DITSON. [CHAP. III. pelled her to flee from him to the onhy home open to her in that State, by the grossest violation of the duties which their relation to each other imposed ; and thus, both these conterminous sovereignties would be powerless for justice, over and upon the call of its respective domiciled inhabitant. In Pennsylvania, the jurisdiction is made to depend upon jurisdiction over the offender at the time of the offence (Dorse}' v. Dor- sey, 7 Watts, 349), as if the lex loci delicti were to govern ; in Louis- iana, upon like jurisdiction, unless the marriage were contracted within the State, when, we suppose, the delictum would be regarded as a breach of contract, if such by the law of Louisiana in which the contract was entered into. Edward v. Green, 9 La. Ann. R. 317. Thus, we per- ceive, that by some courts marriage is treated as a species of continuing executory contract between the parties, the obligations of which, and the causes and even modes of dissolving which, are fixed by the law of the place of contract. So sacredly local is it, in the view of some, that it cannot be dissolved but by the courts of the country in which it was formed. Others, perceiving, that though a contract, it is one universally recognized, acknowledged the right of foreign tri- bunals to act upon it, provided that in doing so, they govern themselves not by the only law which they, it ma}' be by statute, can administer, but ascertain whether it has been broken, and so ought to be dissolved, by the law of the place of the contract. Some treat breaches of the contract of eveiy degree as quasi crimes, to be punished only in the place in which they were committed, provided the parties be then there domiciled ; and others, again, qualify this bj T an exception in favor of the tribunals of the place of contract ; since there the delicta can be treated as breaches of the contract, if such be the law of the place of contract. If marriage be a contract, or the breach of it a tort, it may well be asked, why are they not at least personal in their nature, and transitory in their legal character ? passing with the wronged person wherever he or she passes, for redress by any tribunal of the civilized world, which can obtain jurisdiction of the person of the covenant breaker or trespasser ? It is evident that from such confusion of decisions and reasons, no general principle worth considering can, by any process, be eliminated. Raising ourselves above this mist of misapplied learning and ingenuity, and looking at the matter simply as it is, it is obvious that marriage, as a domestic relation, emerged from the contract which created it, is known and recognized as such throughout the civilized world ; that it gives rights and imposes duties and restrictions upon the parties to it, affecting their social and moral condition, of the measure of which every civilized State, and certainly every State in this Union, is the sole judge so far as its own citizens or subjects are concerned, and should be so deemed by other civilized, and especially sister, States ; that a State cannot be deprived, directly or indirectly, of its sovereign power to regulate the status of its own domiciled subjects and citizens, by the fact that the subjects and citizens of other States, as related to them, SECT. TV.] DITSON V. DITSOX. 451 are interested in that status, and in such a matter has a right, under the general law, judicially to deal with and modify or dissolve this rela- tion, binding both parties to it by the decree, by virtue of its inherent power over its own citizens and subjects, and to enable it to answer their obligatory demands for justice ; and finally, that in the exercise of this judicial power, and in order to the validity of a decree of divorce, whether a mensa et thorn or a vinculo matrimonii, the general law does not deprive a State of its proper jurisdiction over the condition of its own citizens, because non-residents, foreigners, or domiciled inhabi- tants of other States have not or will not become, and cannot be made to become, personally subject to the jurisdiction of its courts ; but upon the most familiar principles, and as illustrated by the most familiar anal- ogies of general law, its courts may and can act conclusively in such a matter upon the rights and interests of such persons, giving to them such notice, actual or constructive, as the nature of the case admits of, and the practice of courts in similar cases sanctions; the purpose of such notice being to banish the idea of secrecy and fraud in the proceed- ing by inviting publicity to it, as well as to give to persons out of the jurisdiction of the court every chance possible, under the circumstances, of appearing to the proceeding, and defending, if the}' will, their own risrhts and interests involved in it. These views are supported by the practice of the States of Connecti- cut and Tennessee called in question, as we have seen by the courts of South and North Carolina, as probably by the practice of main' other States, and certainly by the long continued practice of our own. They are sanctioned by the well-considered decision of Harding v. Alden, 9 Greenl. R. 140, and by that learned jurisconsult, the late Chancellor Kent, in his note on that case, 2 Kent's Com., 110, n. b, 4th ed. They are otherwise best sustained by authority. Tolen v. Tolen, 2 Blackf. 407. Guembell v. Guembell, Wright, 286. Cooper v. Cooper, 7 Ohio, 238. Mansfield v. Mclntyre, 10 ib. 27. Harrison v. Harrison, 19 Ala- bama, 499. Hare v. Hare, 10 Texas, 355. See also the whole subject discussed in Bishop on Marriage and Divorce, passim, and especially in ch. 34 of that valuable work. It may be added, that the distressing consequences which otherwise might arise from the conflict of laws and decisions upon this interesting and important subject has been wisely provided against by a clause of the Constitution of the United States, and can find a remedy under it in the Supreme Court of the United States, as the court of last resort, in cases demanding its application. By art. 4, sect. 1, of the Consti- tution of the United States, " Pull faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." As this has been construed by the highest authority to give in every other State the same effect to a judgment or decree of a State court that it has in that in which it is rendered or passed, no serious injur} - can be done to the proper subjects of our judicial admin- istration by the errors and mistakes of other courts with regard to our 452 DITSON V. DITSON. [CHAP. III. jurisdiction. From the nature of the topics constantly agitated before it, no court in the world is better qualified to deal with questions of general law, and especially with one involving, as that before us does, the rights of a State of the Union ; and under the trained qualifications of the members of the court, as well as the constitutional power of the court itself, those properly subject to our judgments and decrees in this respect, as in all others, are quite safe, having honestly obtained them, in acting by virtue of them. 1 . . . We reserved this case, the first on the circuit which presented the question before discussed for consideration, it being admitted that the husband of the petitioner had never resided with her in this State, or even as the proof showed, been within its borders, and was now abroad in parts unknown, and was not, of course, personally served, because under such circumstances he could not be personally served with the ordi- nary citation issued by us to a resident defendant to such a petition. Under the authorized rule of this court, in regard to constructive notice to an absent defendant to a petition for divorce, upon affidavit of the facts, six weeks' notice of the pendency of this petition was given, by publishing the same for the space of six weeks next before the sitting of the court at this term ; and it is evident that the husband of this lady knows, as from his conduct it is apparent that he cares, nothing about this proceeding. Whatever was the former domicile of the petitioner, we are satisfied that she is, and has, for upwards of the last three years, been a domiciled citizen of Rhode Island, — her only home, in the house of her father; and that, as such citizen, and upon such notice, we have power and jurisdiction over her case, and to change her condition from that of a married to that of a single woman, granting to her the relief, which, under like circumstances, the law and policy of Rhode Islaml accords to all its citizens. Let a decree be entered divorcing Mary Ann Ditson from George L. Ditson, and annulling the bond of matrimony now subsisting between them ; and that the name of the said Mary Ann Ditson be changed to, and she be hereafter known and called by the name of Mary Ann Simmons, according to the prayer of her petition. 2 1 Here follows a discussion of the question of domicile, for which see s. c. supra, p. 205. — Ed. 2 Ace. Cheever v. Wilson, 9 Wall. 108 ; Hanbeny v. Hanberry, 29 Ala. 719 ; Chap- man v. Chapman, 129 111. 386 ; Harden v. Alden, 9 Me. 140 ; Shreck v. Shreck, 32 Tex. 578; Hubbell v. Hubbell, 3 Wis. 662 ; Stevens v. Fi.sk (Can.), 8 L. N. 42. See Rhyms v. Rhyms, 7 Bush. 316 ; Harteau v. Harteau, 14 Pick. 81 ; Frary v. Frary, 10 N. H. 61. In Massachusetts the court at the domicile of either spouse is competent, at the election of the libellant. Sewall v. Sewall, 122 Mass. 156; Watkins v. Watkins, 135 Mass. 83. In Pennsylvania the court of the libellee's domicile alone is competent, unless the libellee has changed his domicile since cause for divorce given. Colvin v. Reed, 55 Pa. 375 ; Reel v. Elder, 62 Pa. 308. In several States, the court of the libe- lant's domicile alone is competent : Irby v. Wilson, 1 Dev. & B. Eq. 568 ; White v. White, 18 R. L 292, 27 Atl. 506 ; Dutcher v. Dutcher, 39 Wis. 651. — Ed SECT. IV.] STATE V. A.RMINGTON. 453 STATE v. ARMINGTON. Supreme Court of Minnesota. 1878. [Reported .:> Minnesota, 29.] The defendant was tried in a district court for the crime of polygamy. He offered in evidence :i certified copy of a decree of divorce between himself and his former wife, granted by a Probate Court in Utah. This was excluded by the court on the ground that both parties were at that time resident in Minnesota : the defendant excepted. The defendant was convicted and sentenced to the state prison for two years, and appealed. 1 Cornell. J. The remaining question for consideration relates to the decision of the court excluding what purports to be an authenticated copy of a decree of divorce of the k> probate court in and for Box Elder county, in the territory of Utah,"' entered in that court at a special term, on December 18. 1876, in an action between John L. Armington, plaintiff, v. Martha E. Armington, defendant, dissolving the marriage contract between them. Among the objections made to this evidence, was the one that, at the time the decree purports to have been rendered both parties thereto were residents of this State, and had been for sev- eral years prior. When this evidence was offered, it incontestable - appeared, from the testimony already given, that both the defendant and his said wife, Mrs. Martha E. Armington, had been resident citi- zens of this State, and domiciled therein, for over nine years prior to the date of the decree, and that they were both actually living in this State at the time of its entry. It did not appear, nor was any offer made to show the fact, that either had ever been domiciled, even tem- porarily, within the territory of Utah ; and as to Mrs. Armington. it is quite clear that she never, at any time during the progress of the proceed- ings in said court, was outside the limits of this State, or within the territorial limits of Utah. As to Mr. Armington, the most that can be claimed from the evidence is that he temporarily left his residence in Xorthfield, in this State, sometime in the summer of 1876, and returned in August or September of that year. Where he was, during this period, does not affirmatively appear : but it does affirmatively appear that he has resided and practised medicine in Xorthfield ever since November in that year. Upon this evidence, the court was warranted in assuming that neither of the parties ever acquired a bona fide domicile or residence in Utah, and that both were, during the conduct of these divorce proceedings, domiciled residents of this State, and subject to its laws. Upon this state of facts, the probate court of Utah, whatever may have been the extent of its jurisdiction over the subject of divorce under the local laws of that territory as respects its citizens, had no 1 Tins short statement ol the fact w i for the question of jurisdiction is sub- ited for the tati roenl oi the Report* r. Part oi the opinion only is given. Ed. 454 PEOPLE V. BAKEK. [CHAP. III. jurisdiction to adjudicate upon the marriage relation existing between these parties. To each State belongs the exclusive right and power of determining upon the status of its resident and domiciled citizens and subjects, in respect to the question of marriage and divorce, and no other State, nor its judicial tribunals, can acquire any lawful jurisdic- tion to interfere in such matters between any such subjects, when neither of them has become bona fide domiciled within its limits ; and any judgment rendered by any such tribunal, under such circumstances, is an absolute nullity. Ditson v. Ditson, 4 R. I. 93; Cooley Const. Lim. 400, and notes; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoff- man, 46 N. Y. 30 ; Hanover v. Turner, 14 Mass. 227. It does not appear upon the face of the judgment or decree, or in any of its recitals, that either of the parties were ever residents of said territory of Utah, or domiciled therein. This is a jurisdictional matter, which should appear, to entitle the judgment to any respect whatever ; for though it be conceded that the probate court that rendered the judgment was in the legal sense a court of record, " its jurisdiction," if any, under the local laws of the territory, "over the subject of divorce, was a special authority not recognized by the common law, and its proceedings in relation to it stand upon the same footing with those of courts of limited and inferior jurisdiction," unaided by any legal presumptions in their favor. Com. v. Blood, 97 Mass. 538. The evidence was properly excluded. 1 PEOPLE v. BAKER. Court of Appeals, New York. 1879. [Reported 76 New York, 78.] Folger, J. As we look at this case, it presents this question : Can a court, in another State, adjudge to be dissolved and at an end, the matrimonial relation of a citizen of this State, domiciled and actually abiding here throughout the pendency of the judicial proceedings there, i Ace. Harrison v. Harrison, 20 Ala. 629 ; Dunham v. Dunham, 162 111. 589, 44 N E 841 ; Hood v. S., 56 Ind. 263; Litowich v. Litowich, 19 Kan. 451 ; Thelau v. Thelau, 75 Minn. 433, 78 N. W. 108 ; Smith v. Smith, 19 Neb. 706, 28 N. W. 296 ; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916 ; Van Fossen v. S., 37 Oh. S. 317. This being a jurisdictional question, a finding by the court that the libellant is domiciled will not give it jurisdiction, nor will a recital of domicile in the judgment render it valid. P. v. Dawell, 25 Mich. 247. This doctrine is applied, even if the non-resi- dents were still subjects of the country which granted the divorce. St. Sure v. Linds- felt, 82 Wis. 346, 52 N. W. 308. A bona ficU temporary residence, without domicile, in a State is not enough to give its courts jurisdiction. Winship v. Winship, 16 N. J. Eq. 107- A court of the State where the parties are domiciled has jurisdiction, though the cause of divorce arose elsewhere : Jones v. Jones, 67 Miss. 195, 6 So. 712 ; and though the motive for acquiring the domicile was to take advantage of the loose laws of divorce : Colburn v. Colburn, 70 Mich. 647, 38 N. W. 607. — Ed. SECT. IV.] PEOPLE V. BAKER. 455 without a voluntary appearance by him therein, and with no actual notice to aim thereof, and without personal service of process on him in that State. We assume, in putting this proposition, that the defendant in error was in the situation therein stated. We think that it may properly be thus assumed. It is true, that the first which is disclosed of the de- fendant in error, by the error-book, shows him in another State, in the act of marriage with Sallie West, the other party in the judicial pro- ceedings there held. It does not appear where his domicile then was, nor where it had been. After the marriage, however, the persons then married resided at Rochester, in this State, at a time prior to the commencement of those judicial proceedings ; and he continued to reside in that city until in 1875, and after the final judgment therein was rendered. We look in vain in the error-book for any exception, proposition, or suggestion, which presents or indicates, that the case was tried at the sessions, upon the theory or contention that the defend- ant in error was domiciled in Ohio, or temporarily abiding there, at any time during the pendency of the judicial proceedings in that State. We come back then to the question we have above stated. We are ready to say, that as the law of this State has been declared by its courts, that question must be answered in the negative. The principle declared in the opinions has been uniform. Such is the utterance in Borden v. Fitch, 15 J. R. 121 ; Bradshaw v. Heath, 13 Wend. 407; Vischer v. Vischer, 12 Barb. 640; Kerr v. Kerr, 41 N. Y. 272 ; Hoff- man v. Hoffman, 4G id. 30. Nor does it avail against them to say that the facts of those cases do not quadrate exactly with those of the case before us. The utterances which we speak of were not inconsid- erate expressions, nor dicta merely. They were considerate steps in the reasoning, leading to the solemn conclusion of the court. And as touching the question in its general relations, we may cite Kilburn v. Woodworth, 5 J. R. 37; Sham way v. Stillman, 4 Cow. 292; S. C. 6 Wend. 447 ; and Ferguson v. Crawford, 70 N. Y. 253, where the whole subject is elaborately considered. We know of no case in our courts which has questioned the principle declared in these authorities. Kinnier v. Kinnier, 45 X. Y. 535, — sometimes claimed to be a de- parture, — does not. It is recognized there, that to make valid in this State a judgment of divorce, rendered by a court of another State, that court must have "the parties within its jurisdiction," must " have jurisdiction of the subject-matter and of the parties," who " must be within the jurisdiction of the court." Hunt v. Hunt, 72 N. Y. 217, does not. That case was close. It went upon the ground, built up with elaboration, that both parties to the judgment were domiciled in Louisiana when the judicial proceedings were; there begun and con- tinued and the judgment was rendered, and were subject to ils laws, includiii"- those for (lie substituted service of process. We meant to keep the reach of our judgment within the bounds fixed by the facts in that case. 456 PEOPLE V. BAKER. [CHAP III. We must and will abide by the law of this State, as thus declared, unless the adjudications in which it has been set forth have been authoritatively overruled in that regard. As this is a question of Fed- oral cognizance, we ought to inquire whether the national judiciary has declared anything inconsistent therewith. Cheever v. Wilson, 9 Wall. 108, is cited. Clearly that case is not applicable. There both the parties to the judgment made a voluntary appearance, and the divorce court had jurisdiction of their persons, as it had of the subject-matter. •• It had jurisdiction of the parties, and the subject-matter," says the opinion in the case cited. It had jurisdiction of the plaintiff in the divorce proceedings, by her voluntary appearance in court, as a peti- tioner, and showing a bona fide residence in that State, in the way fixed therefor by its statute law. It had jurisdiction of the person of the defendant by his voluntary appearance in the court, and putting in a sworn answer to the petition. The dictum in the case of Pennoj'er v. Neff, 95 U. S. 714, even had it the force of a judgment, does not go to the extent needed to overrule these decisions in our State. It is there held, that to warrant a judgment in personam, there must be personal service of process, or assent in advance to a service other- wise. It is also said that a State may authorize judicial proceedings to determine the status of one of its own citizens towards a non-resi- dent, which will be binding within the State, though had without per- sonal service of process or appearance. It is not said, much less is it authoritatively decided, that a judgment thus got may do more than establish the status of the parties to it, within the State in which the judgment is rendered. The case just cited is the latest annunciation known to us of the Supreme Court of the United States. It does not overrule the declarations of our own courts. It rather sustains them. We must and do concede that a State may adjudge the status of its citizen towards a non-resident ; and may authorize to that end such judicial proceedings as it sees fit ; and that other States must acquiesce, so long as the operation of the judgment is kept within its own con- fines. But that judgment cannot push its effect over the borders of another State, to the subversion of its laws and the defeat of its policy ; nor seek across its bounds the person of one of its citizens, and fix upon him a status, against his will and without his consent, and in hostility to the laws of the sovereignty of his allegiance. It is said, that a judicial proceeding to touch the matrimonial rela- tion of a citizen of a State, whether the other party to that relation is or is not also a citizen, is a proceeding in rem, or, as it is more gin- gerly put, quasi in rem. But it was never heard that the courts of one State can affect in another State the rem there, not subjected to their process, and over the person of the owner of which no jurisdiction has been got. Now, if the matrimonial relation of the one party is the res in one State, is not the matrimonial relation of the other party a res in another State ? Take the case of a trust, the subject of which is lands in several States, the trustees all living in one State. Doubtless the SECT. IV.] PECTLE V. BAKER. 457 courts of a State in which the trustees did not live and never went, but in which were some of the trust lands, could proceed in rem and render a judgment without, personal service of process, which would determine there the invalidity of the trust and affect the possession and title of the lands within the jurisdiction of those courts; but it would not be contended that the judgment would operate upon the trustees or the trust lands in other States, so as to affect the title or the possession in those States. It could operate only on the rem upon which the process of those courts could lay hold. And why is not the matrimonial relation of a citizen of New York, as it exists in that State, if it is a res, as much exempt from the effect of such a judgment as lands in that State, and the trust under which they may be held? Is not any other relation of mankind as much a res for the touch and adjudication of courts as that of husband and wife? Take the relation of a minor orphan to its guardian, or to those entitled by law to be its guardians. That is a status, in kind as the matrimonial relation. The courts of one State may act and appoint a guardian for such a child, if it is within their territorial jurisdiction and remains there ; but the appointment is not operative per se in another State into which the child goes. Woodworth v. Spring, 4 Allen, 321. It is, of course, to lie granted, as before said, as a general proposition, to which it is not now needful to suggest limitations, that each State may declare and adjudge the status of its own citizens. And hence if one party to a proceeding is domiciled in a State, the status of that party, as affected by the matrimonial relation, may be adjudged upon and confirmed or changed, in accordance with the laws of that State. But has not the State in which the other party named in the proceedings is domiciled, also the equal right to determine his status, as thus affected, and to declare by law what may change it, and what shall not change it? If one State may have its policy and enforce it, on the subject of mar- riage and divorce, another may. And which shall have its policy pre- vail within its own borders, or shall yield to that of another, is not to be determined by the facility of the judicial proceedings of either, or the greater speed in appealing to them. That there is great diversity in policy is very notable. It does not, however, seem to tend to a state of harmonious and reliable uniformity, to set up the rule that the State in which the courts first act shall extend its laws and policy beyond its borders, and bind or loose the citizens of other sovereignties. It will prove awkward, and worse than that, afflictive and demoralizing, for a man to be a husband in name and under disabilities or ties in one jurisdiction, and single and marriageable in another. Yet it is only in degree that it is harder than the results of other conflicts in laws. It is more sharply presented to us. because tenderer, more sacred, more lasting relations, of greater consequence, are involved; and because the occasions calling attention to the conflict have, of late years, become so frequent. Whatever we may hold in the United States, it will not change results in foreign countries. And in seek- 458 PEOPLE V. BAKER. [CHAP. IIL ing for a rule which shall be of itself, from its own reason, correct, we ought to find or form one, if may be, that is generally applicable. However submissively we must concede to every sovereignty the right to maintain such degree of strictness in the domestic relations as it sees fit, within its own territory, there is no principle of comity which demands that another sovereignty shall permit the status of its citizens to be affected thereby, when contrary to its own public policy, or its standard of public morals. We are not, therefore, satisfied with the doctrine that rests the validity of such judicial proceedings upon the right and sovereign power of a State to determine the status of its own citizens, and be- cause it ma} T not otherwise effectually establish it, asserts the power to adjudge upon important rights, without hearing the party to be affected, and without giving him the notice which is required by the principles of natural justice, he being all the while beyond its jurisdiction. Besides, a just consideration of what is a proceeding in rem, and of the effect of a judgment therein, shows that the latter does not reach so far as is contended for it. It is a proceeding in rem merely. The judgment therein is not usually a ground of action in personam in another jurisdiction, for, as a proceeding in personam, or as giving foundation for one, the court gets no jurisdiction. Pauling v. Bird's Exrs., 13 J. R., 192. How then, upon such basis, can the judgment be brought here and made the foundation of an action against one personally ; and if not a means of offence in personam, how a means of defence to the person, when sought to be held for personal acts, in violation of the laws of his allegiance ? The consequences of such want of harmony in polity and proceed- ing, we have adverted to. The extent of them ought to bring in some legislative remedy. It is not for the courts to disregard general and essential principles, so as to give palliation. Indeed, it is better, by an adherence to the policy and law of our own jurisdiction, to make the clash the more and the earlier known and felt, so that the sooner may there be an authoritative determination of the conflict. It is urged upon us that our State cannot with good grace hold invalid this judgment of a court of Ohio, when our own Code pro- vided, at the time of the rendition of it, for the giving of judgment of divorce against a non-resident, by like substituted service. It is true that, until the new Code of Procedure, such had been the case. 2 R. L. 197, § 1 ; 1 id. 489, § 9 ; 2 R. S. 144, § 38 ; id. 185 ; id. 187, § 134 ; Laws of 1862, chap. 246, § 1 ; Old Code, § 135 ; but see New Code, § 438, sub. 4. This is but to say that, on the principle of the comity of States, we should give effect to this judgment. But this principle is not applied, when the laws and judicial acts of another State are contrary to our own public policy, or to abstract justice or pure morals. The policy of this State always has been, that there ma}' of right be but one sufficient cause for a divorce a vinculo; and that policy lias been upheld, with strenuous effort, against persistent struggles of indi- SECT. IV.'j PEOPLE V. BAKER. 459 viduals to vitiate and change it. And though it is lightly, we must think, sometimes said that it is but a technicality, that there must be personal notice and chance to be heard, to make a valid judgment affecting personal rights and conditions, we cannot but estimate the principle as of too fundamental and of too grave importance, not to be shielded by the judiciary, as often as it is in peril. We are aware that there are decisions of the courts of sister States to the contrary of the authorities in this State. They are ably ex- pressed ; they are honestly conceived. They are, however, on one side of a judicial controversy, the dividing line whereof is well marked, and is not lately drawn. It would not be profitable to review and discuss them. They are prevalent within the jurisdictions in which they have been uttered, and we cannot expect to change them there. They are in opposition to the judgments of our own courts, which we must respect, and with which our reason accords. It remains for the Supreme Court of the United States, as the final arbiter, to determine how far a judgment rendered in such a case, upon such substituted service of process shall be operative without the territorial jurisdiction of the tribunal giving it. There is an exception still to be noticed. The court, in charging the jury, stated to them that, if the divorce had been obtained under the laws of this State, though the defendant in error would not have been guilty of the crime of bigamy, yet he would have been guilty of a misdemeanor, and that that was a pertinent consideration for them. We do not understand that this was meant for an instruction that they could convict him of the misdemeanor, if the}- did not find that he was guilty of the higher offence. The charge is to be taken in connection with the reception in evidence of the Ohio record, on the question of his intent. As bearing merely upon his guilty or innocent purpose, it was not inappropriate for the juiy to consider that though a man, from whom his wife has been divorced a vinculo, in this State may not, by marrying again, incur the penalties for bigamy, lie does violate the de- cree which forbids to him another marriage so long as she lives. We are of opinion that the judgment of the General Term should be reversed, and that of the Sessions be affirmed. All concur, except Church, Ch. J., dissenting. • luiJcjmen t accordlnglij . ' i Ace. Atherton v. Atherton, 155 N. Y. 129, 49 N. E. 933 ; and see Harris v. Harris, 115 N. C. 587, 20 S. E. 187 : Doerr v. Forsythe, 50 Oh. S. 726, 85 X. E. 1055. In Dunham v. Dunham, 162 111. 589, 44 N. E. 841, CARTER, .(., said of the principal : " The consequence was that tin- wife was, and mi removing to New York would continue to be, a single woman, who mighl lawfully marry ; while the husband was a married man, having for his wile one who mighl at the same time become or be the lawful wife of another man. We cannot regard as sound ;i doctrine leading to such results. We are unable to Bee the force of the reasoning which is used to support judicial conclusions that one of the married pair may, in one jurisdiction, by virtue of its laws, and in honesl compliance with them, obtain a valid decree of divorce, which, as to the one obtaining it, is valid and binding in every State in the Union, leaving 460 TURNER V. THOMPSON. [CHAP. III. TURNER v. THOMPSON. High Court of Justice, Probate Division. 1888. [Reported 13 Probate Division, 37.] Sir James Hannen, President. The facts of this case are as fol- lows : The petitioner, Georgiana Turner, was a British subject, dom- iciled in England, and, on November 7, 1872, she married, in England, the respondent, who is a citizen of the United States, domiciled there. He was in the United States marine service, and he was from time to time engaged professionally away from his wife ; but they met and cohabited together at various places in the United States and elsewhere. In 1879 she instituted proceedings in the United States for a decree dissolving the marriage on the ground of her husband's incompetency : the form of decree in the United States being a dissolution of mar- riage, and not, as in this country, a declaration that the marriage was null and void. That is a mere difference in form. The marriage was accordingly dissolved, and she has now returned to England to institute proceedings here for the purpose of having her marriage declared null and void. The case came before my brother Butt, and he raised the question whether there was anything on which this court could proceed, and whether this court has any jurisdiction, because, of course, if the marriage were absolutely dissolved by the court in the United States, then there exists no marriage between the parties upon which this court can be called on to pronounce an opinion. Mr. Justice Butt ordered the case to be argued by the Queen's Proctor, and it now comes before me. I am of opinion that this court has no jurisdiction, in the sense I have already mentioned ; that is, that the marriage was totally and absolutely dissolved by the decree of the court in the United States ; and therefore that there is no marriage between the parties, which could be dissolved or declared null and void by this court. such a one single, and free to remarry in any State, while the matrimonial bonds are still unsevered as to the other party, making him a bigamist should he remarry, and his children the fruit of such remarriage, illegitimate. It would seem to be as logical to say that one of the Siamese twins might have been severed from the other without that other being severed from the one. It should not be forgotten that it is the policy of a great majority of the States, and of our own State as well, as established by legislative enactments, to grant judicial decrees of divorce to bona fide _ residents who comply with the statutory requirements where substituted service merely is had upon the non-resident party. To hold such decrees valid only within the jurisdiction granting them or valid only as to those in whose favor they are granted, leaving the non- resident partv still hound, would not only be inconsistent with the policy of our own laws and in "violation of interstate comity, but would, when it is considered how great is the number of such decrees entered every year, eventually lead to the most per- plexing and distressing complication in the domestic relations of many citizens m the different States." SECT. IV.] CUMMIKGTON V. BELCHERTOWN. 461 The marriage, though it took place in England, must, no doubt, according to The decision in Harvey v. Farnie, 8 App. Cas. 48, which went up to the House of Lords, be taken to be prima facie an Ameri- can marriage, because the husband was domiciled in the United States and prima facie the courts of the place of his domicile had jurisdiction in the matter. If the parties had remained in England then, undei some circumstances, the ease of Niboyet v. Niboyet, 3 P. D. W, is an authority for saving that the courts of this country would have jurisdic- tion. But, as a matter of fact, these parties after the solemnization of the marriage went to the United States and there took up their perma- nent abode. I am of opinion that the wife did completely acquire a domicile in the United States. I know it is alleged on her behalf that that is not so. It is said she was by origin a British subject, and as by the law of England the matter in dispute between her and her husband would have been disposed of in the form of a declaration that the mar- riage was null, she therefore was entitled to treat the marriage as null and void from the beginning, so that she never lost her English domicile at all The fallacy which underlies that argument appears to me to be evident from this. A woman when she marries a man, not only by con* struction of law, but absolutely as a matter of fact, does acquire the domicile of her husband if she lives with him in the country of his domicile. There is no ground here for contending that she did not take up that domicile. She had the intention of taking up her perma- nent abode with him, and of making his country her permanent home. It is to be remembered that a marriage by the law of England, when one of the parties is incompetent, is not a marriage absolutely void, but only voidable at the instance of the injured party. If she had thought fit she might have remained a wife, enjoying all the advantages of a wifp, save that of a marital intercourse. It was only in 1879, the marriage having taken place in 1872, that she instituted proceedings for getting that marriage put aside. I am of opinion that at the time of the institution of that suit, which is the turning point of the proceeding, her domicile was, in fact and in law in the United States ; therefore the United States courts had juris- diction in the matter, and upon this ground I think the petition must be dismissed. CUMMIKGTON v. BELCHERTOWN. Supreme Judicial Court of Massachusetts. 1889. [Reported 149 Massachusetts, 223.] Devbns J Mrs. Angle L. Richards, the expenses of whose support as an insane pauper are here in controversy, had, as Angie L. Root, a legal settlement in the defendant town at the time of her marriage. She acquired one in the plaintiff town by her marriage, on June 10, 462 CUMMINGTON V. BELCHERTOWN. [CHAP, in. 1873, with Charles A. Richards, who was there settled. Milford v. Worcester, 7 Mass. 48. It is the contention of the plaintiff, that, the marriage of the pauper having been legally annulled as having been procured by fraud, her settlement in Cummington thus gained is de- stroyed, and that in Belchertown is revived, it having been suspended onhy during the de facto existence of the marriage. It was held in Dalton v. Bernardston, 9 Mass. 201, that a woman ac- quiring a settlement by ber marriage under the St. of 1793, c. 34 (Pub. Sts. c. 83, § 1, cl. 1), did not lose her settlement b}- a divorce, except for a cause which would show the marriage to have been void. In the latter case, there would have been no such marriage as the statute in- tended as the means of acquiring a settlement. Assuming that the law would be the same where a marriage not originally void, but voidable on the ground of fraud, or for any other reason, was declared void, we consider the question whether the plaintiff has shown any sufficient evi- dence of a decree annulling the marriage by which the defendant or others collaterally affected by the marriage or the dissolution of it would be bound. If the pauper herself would not be bound by such a decree, it is quite clear that the defendant would not be, whether the marriage was absolutely void or voidable only. Not being a party to the decree, and unable, therefore, to take any steps to reverse it, the defendant is not precluded from showing in a collateral proceeding that the decree was erroneous, or that it has no effect such as the plaintiff claims for it. The plaintiff contends that a decree valid as against the pauper, by which her marriage with Richards has been annulled, has been rendered by the Supreme Court of New York, having jurisdiction both of the subject-matter and of the parties. It appeared that Richards and his wife lived together in this State for about a year and three months, when, in October, 1874, Mrs. Richards was adjudged insane, and legally committed to the lunatic hospital in Northampton, where she remained, with the exception of short inter- vals of time during which she was in the custody of her parents, until September 20, 1877, when she was again and finally committed to the hospital, and has remained, and now remains, hopelessly insane. Rich- ards never cohabited with her after her first committal to the hospital ; and at some time thereafter, but at what time does not appear, removed to the State of New York, without, however, any purpose of there ob- taining a divorce, and without then having it in mind. On November 14, 1881, Richards, having only a short time before been informed for the first time that his wife had been insane before their marriage, com- menced a proceeding in New York to have the marriage annulled, on the ground that he was induced to enter into it by fraud, and, after a notice to Mrs. Richards by a summons served upon her while an inmate of the Northampton Hospital, a decree annulling the marriage on the ground that the consent of Richards to the marriage was obtained by fraud was rendered on March 30, 1882. A <• transcript of the doings and record of, and testimony in. the Supreme Court, County of Fulton, SECT. IV.] CUMMINGTON V. BELCHERTOWN. 463 State of New York," was used at the trial in the Superior Court, and the decree there rendered was relied on by the plaintiff as establish- ing the fact of a legal dissolution of the marriage, by which the rights of the plaintiff and of the defendant would be affected in this Commonwealth. While by the Constitution of the United States, Art. 4, § 1, full faith and credit are to be given to the judgments of other States, the juris- diction of the courts rendering them is open to inquiry, both as regards the subject-matter of the controversy and the parties thereto. The re- citals of the record are not conclusive evidence, and a part}', or one affected collaterally by the judgment, may show that the court had no jurisdiction over the party such as it assumed to exercise. Mrs. Rich- ards was. when the proceedings were commenced and concluded, an utterly insane woman. This .not only appears by the finding of the Superior Court, but by all the proceedings of the New York court. It is averred in the petition addressed to it, and the allegations of the petition are found by the referee to whom the inquiries of fact were referred, and by that court, to have been true. It appears also by the return of the summons, and most clearly by the evidence taken before the referee. At no time did she, or an} - one on her behalf, appear be- fore the referee or the court. Yet no guardian, next friend, or other person was appointed to represent her, and a decree annulling her mar- riage was rendered against a person whom the record and evidence showed to be insane, and whose rights were wholly unprotected. She had no actual residence in New York at any time. Her husband had abandoned her here on account of her insanity some time before he went to New York, had made no provision for her support, and she had always resided in this State, which was her domicile of origin. That a decree of divorce rendered under similar circumstances of residence and condition of the wife in another State would not be re- cognized in the State of New York, or allowed in any way, directly or indirectly, there to affect any rights, whether of person or property, of the party against whom it had been made, appears clearly from its decisions. People v. Baker, 76 N. Y. 78; Jones v. Jones, 108 N. Y. 415. We shall not have occasion to consider what would be the effect that should be given here to a decree of divorce, under the circum- stances above stated, if such had been rendered by the New York court. Such a decree necessarily implies the original existence of a lawful marriage. A decree annulling a marriage upon the ground that it was contracted under such circumstances that the party petitioning has a right to have it so annulled, stands upon quite different grounds. The validity of a marriage; depends upon the question whether it was valid where it was contracted. To this rule there are but two excep- tions: marriages which arc deemed contrary to the law of nature as generally recognized in Christian count ties, and those marriages which the Legislature of the Commonwealth has declared shall not be valid he- cause contrary to the policy of our own laws. Commonwealth '•. Lane, 464 CUMMINGTON V. BELCHERTOWN. [CHAP. III. 113 Mass. 458. Even when parties had gone from this Commonwealth into another State with intent of evading our own laws, and had there married, it was held reluctantly, in the absence of a statute declar- ing marriage solemnized there with such intent to be void here, that their validity must be recognized. Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 433. Without discussing the failure to appoint a guardian, the service in the case at bar on Mrs. Richards can have given the New York court no jurisdiction over her personally. To hold that her domicile might be changed to any other State by the act of her husband in removing thereto after he had abandoned her here and ceased to support her, and thus that she could be deprived of the protection in her marital rights, whether of person or property, which this State could extend to her, would be to use the legal fiction of the unity created by the marriage to her serious injury, and to work great injustice. It' the decree of the New York court is to have any validity here, it must be on grounds of comity. Blackinton v. Rlackinton. 141 Mass. 432, 436. There can be no ground of comity which requires that we should recognize the decree of a New York court annulling a Massa- chusetts marriage between Massachusetts citizens, unless it had juris- diction of both the parties; nor even if it did have such jurisdiction should it be recognized here, unless it was based upon grounds which are here held to be sufficient. Suppose two citizens of Massachusetts are married here, each of the age of eighteen years, have children, and then move to New York, where the husband obtains a decree of nullity on the ground that persons under the age of twenty-one years cannot lawfullv marry. The children are not therefore rendered illegitimate in Massachusetts, so that they cannot here inherit their father's lands. Marriages between blacks and whites are still prohibited in some of the States, but a decree in such a State annulling a marriage of this char- acter valid where contracted could not here be regarded. Illustrations of this sort, growing out of the different laws as to marriage in the sev- eral States, could readily be multiplied. The right of a State to declare the present or future status, so far as its own limits are concerned, of persons there lawfully domiciled, cannot be extended so as to enable it to determine absolutely what such status was at a previous time, and while they were subject to the laws of another State. The decrees of its courts in the latter respect must be subject to revision in the State where rights were then existing, or had been acquired. Blackinton v. Black- inton, 141 Mass. 432. The cause alleged and found by the New York court was not sufficient to annul a marriage contracted in Massachusetts between its citizens according to the laws of this Commonwealth. Assuming that a mar- riage may here be declared void on account of fraud, and assuming that fraud is a cause which will enable the party defrauded to maintain a libel for the dissolution of the marriage which has thereby been pro- cured, although the word " fraud," which is found in the Gen. Sts. c. 107, SECT. IV.] CUMMINGTON V. BELCHERTOWN. 465 §§ 4, 5, is omitted in the Pub. Sts. c. 145. §11, no fraud was shown such as would enable a party here to avoid a marriage. Mrs. Richards was sane at the time of her marriage, and entireh* competent to make the marriage contract; she had been insane at a previous period, but had recovered from such attacks, and the fact of such previous insanity was concealed from her husband by Mrs. Richards herself and her family, in the hope that marriage would prove beneficial to her health. She lived with her husband about a year and three months before symptoms of insanity again developed themselves. The possibility or probability that she might again become insane, growing out of the fact that she had previously been so, did not constitute such a fraud as entitled her husband to have the marriage dissolved. There was no fraud of such a character as to affect the basis or the essential character of the contract. Donovan v. Donovan, 9 Allen, 140; Foss v. Foss, 12 Allen, 26. " It is not to be supposed that every error or mistake into which a person may fall concerning the character or qualities of a wife or husband, although occasioned by disingenuous or even false statements or practices, will afford sufficient reason for annulling an executed contract of marriage. . . . Therefore no mis- conception as to the character, fortune, health, or temper, however brought about, will support an allegation of fraud on which a disso- lution of the marriage contract, when once executed, can be obtained in a court of justice." Bigelow, C. J., in Reynolds v. Reynolds, 3 Allen, 605. Upon the ground, then, that the decree of the New York court attempts to annul a marriage contracted in Massachusetts between Massachusetts citizens, and thus affect the legal status of the woman who has remained domiciled in Massachusetts, and has never been within the jurisdiction of the New York court, and deprive her of the rights acquired by her marriage, and especially because it declares the marriage void for a reason on account of which, by the Massachusetts law, it cannot be avoided, we are of opinion that it should not be en- forced here, and that no principle of interstate comity requires that we should give it effect. For these reasons, a majority of the court are of opinion that the settlement acquired by Mrs. Richards by her marriage continues, and that judgment should be entered for the defendant. Judgment for the defendant. 1 l See Linke v. Van Aerde, 10 Times L. Rep. 426 ; Roth v. Roth, 104 111. 35 ; Jilunienthal v. Tannenholz, 31 N.J. Eq. 194; Johnson v. Cooke, [1898] 2 Ir. 130. — Ed. 80 4G6 HADDOCK V. HADDOCK. [CHAP. III. HADDOCK v. HADDOCK. Supreme Court of the United States. 1906. [Reported 201 U. S. 562.] White, J. The plaintiff in error will be called the husband and the defendant in error the wife. The wife, a resident of the State of New York, sued the husband in that State in 1899, and there obtained personal service upon him. The complaint charged that the parties had been married in New York in 1868 where they both resided and where the wife continued to reside, and it was averred that the husband, immediately following the mar- riage, abandoned the wife, and thereafter failed to support her, and that he was the owner of property. A decree of separation from bed and board and for alimony was prayed. The answer admitted the mar- riage, but averred that its celebration was procured by the fraud of the wife, and that immediately after the marriage the parties had separated by mutual consent. It was also alleged that during the long period be- tween the celebration and the bringing of this action the wife had in no manner asserted her rights and was barred by her laches from doing so. Besides, the answer alleged that the husband had, in 1881, obtained in a court of the State of Connecticut a divorce which was conclusive. At the trial before a referee the judgment roll in the suit for divorce in Connecticut was offered by the husband and was objected to, first, because the Connecticut court had not obtained jurisdiction over the person of the defendant wife, as the notice of the pendency of the peti- tion was In' publication and she had not appeared in the action ; and, second, because the ground upon which the divorce was granted, viz., desertion by the wife, was false. The referee sustained the objections and an exception was noted. The judgment roll in question was then marked for identification and forms a part of the record before us. Having thus excluded the proceedings in the Connecticut court, the referee found that the parties were married in New York in 1868, that the wife was a resident of the State of New York, that after the mar- riage the parties never lived together, and shortly thereafter that the husband without justifiable cause abandoned the wife, and has since neglected to provide for her. The legal conclusion was that the wife was entitled to a separation from bed and board and alimony in the sum of $780 a year from the date of the judgment. The action of the ref- eree was sustained by the Supreme Court of the State of New York, and a judgment for separation and alimony was entered in favor of the wife. This judgment was affirmed by the Court of Appeals. As by the law of the State of New York, after the affirmance by the Court of Appeals, the record was remitted to the Supreme Court, this writ of error to that court was prosecuted. SECT. IV.] HADDOCK V. HADDOCK. 467 The Federal question is, Did the court below violate the Constitution of the United States by refusing to give to the decree of divorce ren- dered in the State of Connecticut the faith and credit to which it was entitled? As the averments concerning the alleged fraud in contracting the marriage and the subsequent laches of the wife are solely matters of State cognizance, we may not allow them to even indirectly influence our judgment upon the Federal question to which we are confined, and we, therefore, put these subjects entirely out of view. Moreover, as, for the purpose of the Federal issue, we are concerned not witli the mere form of proceeding by which the Federal right, if any, was denied, but alone have power to decide whether such right was denied, we do not inquire whether the New York court should preferably have admit- ted the record of the Connecticut divorce suit, and, after so admitting it, determine what effect it would give to it instead of excluding the record and thus refusing to give etfect to the judgment. In order to decide whether the refusal of the court to admit in evidence the Con- necticut decree denied to that decree the efficacy to which it was enti- tled under the full faith and credit clause, we must first examine the judgment roll of the Connecticut cause in order to fix the precise cir- cumstances under which the decree in that cause w r as rendered. Without going into detail, it suffices to say that on the face of the Connecticut record it appeared that the husband, alleging that he had acquired a domicil in Connecticut, sued the wife in that State as a per- son whose residence was unknown, but whose last known place of resi- dence was in the State of New York, at a place stated, and charged desertion by the wife and fraud on her part in procuring the marriage; and, further, it is shown that no service was made upon the wife except by publication and by mailing a copy of the petition to her at berlasl known place of residence in the State of New York. With the object of confining our attention to the real question arising from this condition of the Connecticut record, we state at the outset certain legal propositions irrevocably concluded by previous decisions of this court, and which are required to lie borne in mind in analyzing the ultimate issue to be decided. First. The requirement of the Constitution is not that some, but thai full faith and credit shall be given by States to the judicial decrees .if other States. That is to say. where a decree rendered in one State is embraced by the full faith and credit clause that constitutional provision commands that the other States shall give to the decree the force and etfect to which it was entitled in the State where rendered. Harding /•. Harding, 198 U. S. :;17. Second. Where a personal judgment lias been rendered in the courts of a State against, a non-resident merely upon constructive service and. therefore, without acquiring jurisdiction over the person of the defend- ant, such judgment may not be enforced in another State in virtue of he full faith ami credit clause. Indeed, a personal judgment so 468 HADDOCK V. HADDOCK. [CHAP. III. rendered is by operation of the due process clause of the Fourteenth Amendment void as against the non-resident, even in the State where rendered, and, therefore, such non-resident in virtue of rights granted by the Constitution of the United States may successfully resist even in the State where rendered, the enforcement of such a judgment. Pen- noyer v. Neff, 95 U. S. 714. The facts in that case were these: Neff, who was a resident of a State other than Oregon, owned a tract of land in Oregon. Mitchell, a resident of Oregon, brought a suit in a court of that State upon a money demand against Neff. The Oregon statutes required, in the case of personal action against a non-resident, a publi- cation of notice, calling upon the defendant to appear and defend, and also required the mailing to such defendant at his last known place of residence, of a copy of the summons and complaint. Upon affidavit of the absence of Neff, and that he resided in the State of California, the exact place being unknown, the publication required by the statute was ordered and made, and judgment by default was entered against Neff. Upon this judgment execution was issued and real estate of Neff was sold and was ultimately acquired by Pennoyer. Neff sued in the Circuit Court of the United States for the District of Oregon to recover the property, and the question presented was the validity in Oregon of the judgment there rendered against Neff. After the most elaborate consideration it was expressly decided that the judgment rendered in Oregon under the circumstances stated was void for want of jurisdic- tion and was repugnant to the due process clause of the Constitution of the United States. The ruling was based on the proposition that a court of one State could not acquire jurisdiction to render a personal judgment against a non-resident who did not appear by the mere publi- cation of a summons, and that the want of power to acquire such juris- diction by publication could not be aided by the fact that under the statutes of the State in which the suit against the non-resident was brought the sending of a copy of the summons and complaint to the post office address in another State of the defendant was required and complied with. The court said (p. 727) : "Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obli- gation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in pro- ceedings to establish his personal liability." And the doctrine thus stated but expressed a general principle ex- pounded in previous decisions. Bischoff v. Wethered, 9 Wall. 812. In that case, speaking of a money judgment recovered in the Common Pleas of Westminster Hall, England, upon personal notice served in the city of Baltimore, Mr. Justice Bradley, speaking for the court, said (p. 814) : t; It is enough to say [of this proceeding] that it was wholly without SECT> IV .] HADDOCK V. HADDOCK. 469 jurisdiction of the person, and whatever validity it may have in England, by virtue of statute law against property of the defendant there situate, it can have no validity here, even of a prima facie character. It is simplv null." Third. The principles, however, stated in the previous proposition are controlling only as to judgments in personam and dp not relate to proceedings in rem. That is to say, in consequence of the authority which government possesses over things within its borders there is juris- dictioifin a court of a State bv a proceeding in rem, after the giving of reasonable opportunity to the owner to defend, to affect things within the jurisdiction of the court, even although jurisdiction is not directly acquired over the person of the owner of the thing. Pennoyer v. Netf, supra. Fourth. The general rule stated in the second proposition is, more- over, limited bv the inherent power which all governments must possess over the marriage relation, its formation and dissolution, as regards their own citizens. From this exception it results that where a court of one State, conformably to the laws of such State, or the State through its legislative department, has acted concerning the dissolution of the marrfacre tie, as to a citizen of that State, such action is binding in that State as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the State in dealing with its own citizen concerning the marriage relation was re- pugnant to the due process clause of the Constitution. Maynard v. Hill, 125 U. S. 190. In that case the facts were these: Maynard was married in Vermont, and the husband and wife removed to Ohio, from whence Mavnard left his wife and family and went to California. Sub- sequentlv he acquired a domicil in the Territory of Washington. Being there so'domiciled, an act of the legislature of the Territory was passed granting a divorce to the husband. Maynard continued to reside m Washington, and there remarried and died. The children of the former wife, claiming in right of their mother, sued in a court of the Territory of Washington to recover real estate situated in the Territory, and one of the issues for decision was tin- validity of the legislative divorce granted to the father. The statute was assailed as invalid, on the ground that M>s. Maynard had no notice and that she was not a resi- dent of the Territory when the act was passed. From a decree of the Supreme Court of the Territory adverse to their claim the children brought the case to this court. The power of the territorial legislature, in the absence of restrictions in the organic act, to grant a divorce to a citizen of the Territory was, however, upheld, in view of the nature and extent of the authority which government possessed over the marriage relation. It was therefore decided that the courts of the Territory com- mitted no error in giving effect within the Territory to the divorce in question. And as a corollary of the recognized power of a govern- ment thus to deal with its own citizen by a decree which would be Operative within its own borders, irrespective of any extraterritorial 470 HADDOCK V. HADDOCK. [CHAP. III. .efficacy, it follows that the right of another sovereignty exists, under principles of comity, to give to a decree so rendered such efficacy as to that government may seem to be justified by its conceptions of duty and public policy. Fifth. It is no longer open to question that where husband and wife are domiciled in a State there exists jurisdiction in such State, for good cause, to enter a decree of divorce which will be entitled to enforcement in another State by virtue of the full faith and credit clause. It has, moreover, been decided that where a bona fide domicil has been acquired in a State by either of the parties to a marriage, and a suit is brought by the domiciled party in such State for a divorce, the courts of that State, if they acquire personal jurisdiction also of the other party, have authority to enter a decree of divorce, entitled to be enforced in every State by the full faith and credit clause. Cheever v. Wilson, 9 "Wall. 108. Sixth. Where the domicil of matrimon\- was in a particular State, and the husband abandons his wife and goes into another State in order to avoid his marital obligations, such other State to which the husband has wrongfully fled does not, in the nature of things, become a new domicil of matrimony, and, therefore, is not to be treated as the actual or con- structive domicil of the wife ; hence, the place where the wife was domi- ciled when so abandoned constitutes her legal domicil until a new actual domicil be by her elsewhere acquired. This was clearly expressed in Barber v. Barber, 21 Mow. 582, where it was said (p. 595) : u The general rule is, that a voluntary separation will not give to the wife a different domiciliation in law from that of her husband. But if the husband, as is the fact in this case, abandons their domicil and his wife, to get rid of all those conjugal obligations which the marriage re- lation imposes upon him, neither giving to her the necessaries nor the comforts suitable to their condition and his fortune, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone makes his domicil hers. ..." And the same doctrine was expressly upheld in Cheever r. Wilson, supra, where the court said (9 Wall. 123) : wi It is insisted that Cheever never resided in Indiana ; that the dom- icil of the husband is the wife's, and that she cannot have a different one from his. The converse of the latter proposition is so well settled that it would be idle to discuss it. The rule is that she may acquire a separate domicil whenever it is necessary or proper that she should do so. The right springs from the necessity of its exercise, and endures as long as the necessity continues." Seventh. So also it is settled that where the domicil of a husband is in a particular State, and that State is also the domicil of matrimony, the courts of such State having jurisdiction over the husband may, in virtue of the duty of the wife to be at the matrimonial domicil, disregard an unjustifiable absence therefrom, and treat the wife as having her domicil in the State of the matrimonial domicil for the purpose of the SECT. IV.] HADDOCK V. HADDOCK. 471 dissolution of the marriage, and as a result have power to render a judgment dissolving the marriage which will be binding upon both par- ties, and will be entitled to recognition in all other States by virtue of the full faith and credit clause. Atherton v. Atherton, 181 U. S. 155. Coming to apply these settled propositions to the case before us three things are beyond dispute : a. In view of the authority which govern- ment possesses over the marriage relation, no question can arise on this record concerning the right of the State of Connecticut within its borders to give effect to the decree of divorce rendered in favor of the husband by the courts of Connecticut, he being at the time when the decree was rendered domiciled in that State, b. As New York was the domicil of the wife and the domicil of matrimony, from which the husband fled in disregard of his duty, it clearly results from the sixth proposition that the domicil of the wife continued in New York. c. As then there can be no question that the wife was not constructively present in Connecticut by virtue of a matrimonial domicil in that State, and was not there indi- vidually domiciled and did not appear in the divorce cause, and was only constructively served with notice of the pendency of that action, it is apparent that the Connecticut court did not acquire jurisdiction over the wife within the fifth and seventh propositions ; that is, did not ac- quire such jurisdiction by virtue of the domicil of the wife within the State or as the result of personal service upon her within its borders. These subjects being thus eliminated, the case reduces itself to this : Whether the Connecticut court, in virtue alone of the domicil of the hus- band in that State, had jurisdiction to render a decree against the wife under the circumstances stated, which was entitled to be enforced in other States in and I13' virtue of the full faith and credit clause of the Constitution. In other words, the final question is whether to enforce in another jurisdiction the Connecticut decree would not be to enforce in one State, a personal judgment rendered in another State against a de- fendant over whom the court of the State rendering the judgment had not acquired jurisdiction. Otherwise stated, the question is this: Is a proceeding for divorce of such an exceptional character as not to come within the rule limiting the authority of a State to persons within its jurisdiction, but on the contrary, because of the power which govern- ment may exercise over the marriage relation, constitutes an exception to that rule, and is therefore embraced, either within the letter or spirit of the doctrines stated in the third and fourth propositions? Before reviewing the authorities relied on to establish that a divorce proceeding is of the exceptional nature indicated, we propose first to consider the reasons advanced to sustain the contention. In doing so, however, it must always be borne in mind that it is elementary that where the full faith and credit clause of the Constitution is invoked to compel the enforcement in one State of a decree rendered in another, the question of the jurisdiction of the court by which the decree was rendered is open to inquiry. And if there was no jurisdiction, either of the subject matter or of the person of the defendant, the courts of an- 472 HADDOCK V. HADDOCK. [CHAP. III. other State are not required, by virtue of the full faith and credit clause of the Constitution, to enforce such decree. National Exchange Bank v. Wiley, 195 U. S. 257, 269. and cases cited. I. The wide scope of the authority which government possesses over the contract of marriage and its dissolution is the basis upon which it is argued that the doraicil within one State of one party to the marriage gives to such a State jurisdiction to decree a dissolution of the marriage tie which will be obligatory in all the other States by force of the full faith and credit clause of the Constitution. But the deduction is de- structive of the premise upon which it rests. This becomes clear when it is perceived that if one government, because of its authority over its own citizens has the right to dissolve the marriage tie as to the citizen of another jurisdiction, it must follow that no government possesses as to its own citizens, power over the marriage relation and its dissolution. For if it be that one government in virtue of its authority over marriage may dissolve the tie as to citizens of another government, other govern- ments would have a similar power, and hence the right of every gov- ernment as to its own citizens might be rendered nugatory by the exercise of the power which every other government possessed. To concretelv illustrate: If the fact be that where persons are married in the State of New York either of the parties to the marriage may, in violation of the marital obligations, desert the other and go into the State of Connecticut, there acquiring a domicil, and procure a dissolu- tion of the marriage which would be binding in the State of New York as to the party to the marriage there domiciled, it would follow that the power of the State of New York as to the dissolution of the marriage as to its domiciled citizen would be of no practical avail. And conversely the like resuit would follow if the marriage had been celebrated in Con- necticut and desertion had been from that State to New York, and consequently the decree of divorce had been rendered in New York. Even a superficial analysis will make this clear. Under the rule con- . tended for it would follow that the States whose laws were the most lax as to length of residence required for domicil. as to causes for divorce and to speed of procedure concerning divorce, would in effect dominate all the other States. In other words, any person who was married in one State and who wished to violate the marital obligations would be able, by following the lines of least resistance, to go into the State whose laws were the most lax, and there avail of them for the purpose of the severance of the marriage tie and the destruction of the rights of the other party to the marriage contract, to the overthrow of the laws and public policy of the other States. Thus the argument comes neces- sarilv to this, that to preserve the lawful authority of alt the States over marriage it is essential to decide that all the States have such authority only at the sufferance of the other States. And the considerations just stated serve to dispose of the argument that the contention relied on finds support in the ruling made in Maynard v. Hill, referred to in the fourth proposition, which was at the outset stated. For in that case SECT. IV.] HADDOCK V. HADDOCK. 473 the sole question was the effect within the Territory of Washington of a legislative divorce granted in the Territory to a citizen thereof. The upholding of the divorce within the Territory was, therefore, but a rec- ognition of the power of the territorial government, in virtue of its authority over marriage, to deal with a person domiciled within its jurisdiction. The case, therefore, did not concern the extraterritorial efficacy of the legislative divorce. In other words, whilst the ruling recognized the ample powers which government possesses over mar- riage as to one within its jurisdiction, it did not purport to hold that such ample powers might be exercised and enforced by virtue of the Constitution of the United States in another jurisdiction as to citizens of other States to whom the jurisdiction of the Territory did not extend. The anomalous result which it is therefore apparent would arise from maintaining the proposition contended for is made more manifest In- considering the instrument from which such result would be produced, that is, the full faith and credit clause of the Constitution. No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce. No one, moreover, can deny that, prior to the adoption of the Constitution, the extent to which tiie States would recognize a divorce obtained in a foreign jurisdiction depended upon their conceptions of duty and comity. Besides, it must be conceded that the Constitution delegated no author- ity to the Government of the United States on the subject of marriage and divorce. Yet, if the proposition be maintained, it would follow that the destruction of the power of the States over the dissolution of marriage, as to their own citizens, would be brought about by the oper- ation of the full faith and credit clause of the Constitution. That is to say. it would come to pass that, although the Constitution of the United States does not interfere with the authority of the States over marriage, nevertheless the full faith and credit clause of that instrument destroyed the authority of the States over the marriage relation. And as the Government of the United States has no delegated authority on the subject, that Government would be powerless to prevent the evil thus brought about by the full faith and credit clause. Thus neither the States nor the National Government would be able to exert that au- thority over the marriage tie possessed by every other civilized gov- ernment. Yet, more remarkable would be such result when it is borne in mind that, when the Constitution was adopted, nowhere, either in the mother country or on the continent of Europe, either in adjudged cases or in the treatises of authoritative writers, had the theory ever been upheld or been taught or even suggested that one government, solely because of the domicil within its borders of* one of the parties to a marriage, had authority, without the actual or constructive presence of the other, to exert its authority by a dissolution of the marriage tic. which exertion of power it would lie the duty of other States to respect as to those subject to their jurisdiction. 474 HADDOCK V. HADDOCK. [CHAP. III. II. It is urged that the suit for divorce was a proceeding in rein, and, therefore, the Connecticut court had complete jurisdiction to enter a decree as to the res, entitled to be enforced in the State of New York. But here again the argument is contradictor}'. It rests upon the theory that jurisdiction in Connecticut depended upon the dotnicil of the person there suing and }et attributes to the decree resting upon the domicil of one of the parties alone a force and effect based upon the theory that a thing within the jurisdiction of Connecticut was the subject matter of the controversj*. But putting this contradiction aside, what, may we ask, was the res in Connecticut? Certainly it cannot in reason be said that it was the cause of action or the mere presence of the person of the plaintiff within the jurisdiction. The only possible theory then upon which the proposition proceeds must be that the res in Connecticut, from which the jurisdiction is assumed to have arisen, was the marriage relation. But as the marriage was celebrated in New York between citizens of that State, it must be admitted, under the hypothesis stated, that before the husband deserted the wife in New York, the res was in New York and not in Connecticut. As the husband, after wrongfully abandoning the wife in New York, never established a matrimonial domicil in Connecticut, it cannot be said that he took with him the marital relation from which he fled to Connecticut. Conceding, how- ever, that he took with him to Connecticut so much of the marital rela- tion as concerned his individual status, it cannot in reason be said that he did not leave in New York so much of the relation as pertained to the status of the wife. From any point of view, then, under the propo- sition referred to, if the marriage relation be treated as the res, it follows that it was divisible, and therefore there was a res in the State of New York and one in the State of Connecticut. Thus considered, it is clear that the power of one State did not extend to affecting the thing situated in another State. As illustrating this conception, we notice the case of Mississippi & Missouri R. R. Co. v. Ward, 2 Black, 485. The facts in that case were these : A bill was filed in a District Court of the United States for the District of Iowa to abate a nuisance alleged to have been occasioned by a bridge across the Mississippi River dividing the States of Illinois and Iowa. Under the assumption that the nuisance was occasioned by the operation of the bridge on the Illinois side, the court, after pointing out that the United States Circuit Court for the Dis- trict of Iowa exercised the same jurisdiction that a State court of Iowa could exercise and no more, said (p. 494 ) : " The District Court had no power over the local object inflicting the injury ; nor any jurisdiction to inquire of the facts, whether damage had been sustained, or how much. These facts are beyond the court's juris- diction and powers of inquiry, and outside of the case." Nor has the conclusive force of the view which we have stated been met by the suggestion that the res was indivisible, and therefore was wholly in Connecticut and wholly in New York, for this amounts but to saying that the same thing can be at one and the same time in differ- SECT. IV.] HADDOCK V. HADDOCK. 475 ent places. Further, the reasoning above expressed disposes of the contention that, as the suit in Connecticut involved the status of the husband, therefore the courts of that State had the power to determine the status of the non-resident wife by a decree which had obligatory force outside of the State of Connecticut. Here, again, the argument comes to this, that, because the State of Connecticut had jurisdiction to fix the status of one domiciled within its borders, that State also had the authority to oust the State of New York of the power to fix the status of a person who was undeniably subject to the jurisdiction of that State. III. It is urged that whilst marriage is in one aspect a contract, it is nevertheless a contract in which society is deeply interested, and, there- fore, government must have the power to determine whether a marriage exists or to dissolve it, and hence the Connecticut court had jurisdiction of the relation and the right to dissolve it, not only as to its own citizen but as to a citizen of New York who was not subject to the jurisdiction of the State of Connecticut. The proposition involves in another form of statement the non sequitur which we have previously pointed out; that is, that, because government possesses power over marriage, there- fore the existence of that power must be rendered unavailing. Nor is the contention aided by the proposition that because it is im- possible to conceive of the dissolution of the marriage as to one of the parties in one jurisdiction without at the same time saying that the mar- riage is dissolved as to both in every other jurisdiction, therefore the Connecticut decree should have obligatory effect in New York as to the citizen of that State. For, again, by a change of form of statement, the same contention which we have disposed of is reiterated. Besides, the proposition presupposes that, because in the exercise of its power over its own citizens, a State may determine to dissolve the marriage tie by a decree which is eflicacious within its borders, therefore such decree is in all cases binding in every other jurisdiction. As we have pointed out at the outset, it does not follow that a State may not exert its power as to one within its jurisdiction simply because such exercise of authority may not be extended beyond its borders into the jurisdiction and authority of another State. The distinction was clearly pointed out in Blackinton v. Blackinton, 141 Mass. 432. In that case the par- ties were married and lived in Massachusetts. The husband abandoned the wife without cause and became domiciled in Now York. The wife remained at the matrimonial domicil in Massachusetts and instituted a proceeding to prohibit her husband from imposing any restraint upon her personal liberty and for separate maintenance. Service was made upon the husband in New York. The court, recognizing fully that Under the circumstances disclosed the domicil of the husband was no the domicil of the wife, concluded that, under the statutes of Massa- chusetts, it had authority to grant the relief prayed, and was thi brought to determine whether the decree ought to be made, in view oi the fact that such decree might not have extraterritorial force, l'.ut 47(i HADDOCK V. HADDOCK. [CHAP. III. this circumstance was held not to be controlling and the decree was awarded. The same doctrine was clearly expounded by the Privy Council, in an opinion delivered by Lord Watson, in the divorce case of Le Mesurier v. Le Mesurier (1895), A. C. 517, where it was said (p. 527) : "When the jurisdiction of the court is exercised according to the rules of international law, as in the case where the parties have their domicil within its forum, its decree dissolving their marriage ought to be respected by the tribunals of every civilized country. ... On the other hand, a decree of divorce a vinculo, pronounced by a court whose jurisdiction is solely derived from some rule of municipal law peculiar to its forum, cannot, when it trenches upon the interests of any other countrv to whose tribunals the spouses were amenable, claim extraterri- torial authority." IV. The contention that if the power of one State to decree a disso- lution of a marriage which would be compulsory upon the other States be limited to cases where both parties are subject to the jurisdiction, the right to obtain a divorce could be so hampered and restricted as to be in effect impossible of exercise, is but to insist that in order to favor the dissolution of marriage and to cause its permanency to depend upon the mere caprice or wrong of the parties, there should not be applied to the right to obtain a divorce those fundamental principles which safe- guard the exercise of the simplest rights. In other words, the argument but reproduces the fallacy already exposed, which is, that one State must be endowed with the attribute of destroying the authority of all the others concerning the dissolution of marriage in order to render such dissolution easy of procurement. But even if the true and controlling principles be for a moment put aside and mere considerations of incon- venience be looked at, it would follow that the preponderance of incon- venience would be against the contention that a State should have the power to exert its authority concerning the dissolution of marriage as to those not amenable to its jurisdiction. By the application of that rule each State is given the power of overshadowing the authority of all the other States, thus causing the marriage tie to be less protected than any other civil obligation, and this to be accomplished by destroying individual rights without a hearing and by tribunals having no jurisdic- tion. Further, the admission that jurisdiction in the courts of one State over one party alone was the test of the right to dissolve the marriage tie as to the other party although domiciled in another State, would at once render such test impossible of general application . I n other words, the test, if admitted, would destroy itself. This follows, since if that test were the rule, each party to the marriage in one State would have a right to acquire a domicil in a different State and there institute pro- ceedings for divorce. It would hence necessarily arise that domicil would be no longer the determinative criterion, but the mere race of diligence between the parties in seeking different forums in other States or the celerity by which in such States judgments of divorce might be SECT. IV.] HADDOCK V. HADDOCK. 47V procured would have to be considered in order to decide which forum was controlling. On the other hand, the denial of the power to enforce in another State a decree of divorce rendered against a person who was not subject to the jurisdiction of the State in which the decree was rendered obviates all the contradictions and inconveniences which are above indicated. It leaves uncurtailed the legitimate power of all the States over a subject peculiarly within their authority, and thus not only enables them to maintain their public policy but also to protect the individual rights of their citizens. It does not deprive a State of the power to render a de- cree of divorce susceptible of being enforced within its borders as to the person within the jurisdiction, and does not debar other States from giv- ing such effect to a judgment of that character as they may elect to do under mere principles of State comity. It causes the full faith and credit clause of the Constitution to operate upon decrees of divorce in the respective States just as that clause operates upon other rights, that is. it compels all the States to recognize and enforce a judgment of divorce rendered in other States where both parties were subject to the jurisdiction of the State in which the decree was rendered, and it en- ables the States rendering such decrees to take into view for the purpose of the exercise of their authority the existence of a matrimonial doraicil from which the presence of a party not physically present within the borders of a State may lie constructively found to exist. Havino- thus disposed of the reasoning advanced to sustain the asser- tion that the courts of the State of New York were bound by the full faith and credit clause to give full effect to the Connecticut decree, we are brought to c insider the authorities relied upon to support that proposition. Whilst the continental and English authorities are not alluded to in the argument, it may be well, in the most summary way. to refer to them as a means of illustrating the question for consideration. The extent of the power which independent sovereignties exercised over the dissolution of the marriage tie, as to their own citizens, gave rise, in the nature of tilings, to controversies concerning the extraterritorial effect to be given to a dissolution of such tie when made between citizens of one country by judicial tribunals of another country in which such citi- zens had become domiciled. We do not deem it essential, however, to consider the conflicting theories and divergent rules of public policy which were thus engendered. We are relieved of the necessity of enter- ing upon such an inquiry, since it cannot be doubted that neither the practice nor the theories controlling in the countries on the continent lend the slightest sanction to the contention that a government, simply because one of the parties to a marriage was domiciled within its bor- ders, where no matrimonial domicil ever existed, had power to render a decree dissolving a marriage which on principles of international law was entitled to obligatory extraterritorial eflect as to the other party to the marriage, a citizen of another country. Wharto Conf. Laws, 3d ed., v. 1, {>. 441, § 209 and notes 478 HADDOCK V. HADDOCK. [CHAP. III. It cannot be doubted, also, that the courts of England decline to treat a foreign decree of divorce as having obligatory extraterritorial force when both parties to the marriage were not subject to the jurisdiction of the court which rendered the decree. Shaw v. Gould, L. R. 3 EL L. 55 ; Harvey v. Farnie, 8 App. Cas. 43. And, although it has been sug- gested in opinions of English judges treating of divorce questions that exceptional occasions might arise which perhaps would justify a relax- ation of the rigor of the presumption that the domicil of the husband was the domicil of the wife, per Lords Eldon and Redesdale, in Tovey v. Lindsay, 1 Dow. 133, 140; per Lord Westbury, in Pitt v. Pitt, 4 Macq. 627. 640 ; per Brett, L. J., in Niboyet v. Niboyet, 4 P. D. 1, 14 ; Brings v. Briggs, 5 P. D. 163, 165 ; and per James and Cotton, L. JJ., in Harvey r. Farnie, 6 P. D. 47, 49, the courts of England, in cases where the jurisdiction was dependent upon domicil, have enforced the presumption and treated the wife as being within the jurisdiction where the husband was legally domiciled. But this conception was not a de- parture from the principle uniformly maintained, that, internationally considered, jurisdiction over both parties to a marriage was essential to the exercise of power to decree a divorce, but was simply a means of determining by a legal presumption whether both parties were within the jurisdiction. Of course the rigor of the English rule as to the dom- icil of the husband being the domicil of the wife is not controlling in this court, in view of the decisions to which we have previously referred, recognizing the right of the wife, for the fault of the husband, to acquire a separate domicil. Barber v. Barber, 21 How. 582; Cheever v. Wil- son, 9 Wall. 108; Atherton <\ Atherton, 181 U. S. 155. And even in Scotland, where residence, as distinguished from domicil, was deemed to authorize the exercise of jurisdiction to grant divorces, it was invariably recognized that the presence within the jurisdiction of both parties to the marriage was essential to authorize a decree in favor of the complainant. Wharton, Conf. Laws, §215, v. 1, p. 447; per Lord Westbury, in Shaw v. Gould, L. R. 3 H. L. 88. As respects the decisions of this court. We at once treat as inappo- site, and therefore unnecessary to be here specially reviewed, those hold- ing, a, that where the domicil of a plaintiff in a divorce cause is in the State where the suit was brought, and the defendant appears and de- fends, as both parties are before the court, there is power to render a decree of divorce which will be entitled in other States to recognition under the full faith and credit clause (Cheever v. Wilson, supra) ; b, that, as distinguished from legal domicil, mere residence within a particular State of the plaintiff in a divorce cause brought in a court of such State is not sufficient to confer jurisdiction upon such court to dissolve the marriage relation existing between the plaintiff and a non-resident de- fendant. Andrews v. Andrews, 188 U. S. 14 : Streitwolf v. Streitwolf, 181 U. S. 179; Bell v. Bell, 181 U. S. 175. This brings us to again consider a case heretofore referred to, principally relied upon as sus- taining the contention that the domicil of one party alone is sufficient SECT. IV.] HADDOCK V. HADDOCK. 479 to confer jurisdiction upon a judicial tribunal to render a decree of divorce having extraterritorial effect, viz., Atherton v. Atherton, l.si U. S. 155. The decision in that case, however, as we have previously said, was expressly placed upon the ground of matrimonial domicil. This is apparent from the following passage, which we excerpt from the opinion, at page 171 : "This case does not involve the validity of a divorce granted, on constructive service, by the court of a State in which only one of the parties ever had a domicil ; nor the question to what extent the good faith of the domicil may be afterwards inquired into. In this case the divorce in Kentucky was by the court of the State which had always been the undoubted domicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky." The contention, therefore, that the reasoning of the opinion demon- strates that the domicil of one of the parties alone was contemplated as being sufficient to found jurisdiction, but insists that the case decided a proposition which was excluded in unmistakable language. But, more- over, it is clear, when the facts which were involved in the Atherton case are taken into view, that the case could not have been decided merely upon the ground of the domicil of one of the parties, because that consideration alone would have afforded no solution of the problem which the case presented. The salient facts were these : The husband lived in Kentucky, married a citizen of New York, and the married couple took up their domicil at the home of the husband in Kentucky, where they continued to reside and where children were born to them. The wife left the matrimonial domicil and went to New York. The husband sued her in Kentucky for a divorce. Before the Kentucky suit merged into a decree the wife, having a residence in New York sufficient, under ordinary circumstances, to constitute a domicil in that State, sued the husband in the courts of New York for a limited divorce. Thus the two suits, one by the husband against the wife and the other bv the wife against the husband, were pending in the respective States at the same time. The husband obtained a decree in the Kentucky suit before the suit of the wife had been determined, and pleaded such decree in the suit brought by the wife in New York. The New York court, however, re- fused to recognize the Kentucky decree and the case came here, ami this court decided that the courts of New York were bound to give effect to the Kentucky decree by virtue of the full faith and credit clause. Under these conditions it is clear that the case could not have been disposed of on the mere ground of the individual domicil of the parties, since upon that hypothesis, even if the efficacy of the individual domicil bad been admitted, no solution would have been thereby afforded of the problem which would have arisen for decision, that problem being which of the two courts wherein the conflicting proceedings were pending had hac. the paramount right to enter a binding decree. Having disposed 480 HADDOCK V. HADDOCK. [CHAP. III. of the case upon the principle of matrimonial domicil, it cannot in reason lie conceived that the court intended to express an opinion upon the soundness of the theory of individual and separate domicil which, iso- latedly considered, was inadequate to dispose of, and was, therefore, irrelevant to, the question for decision. . . - 1 Without questioning the power of the State of Connecticut to enforce within its own borders the decree of divorce which is here in issue, and without intimating a doubt as to the power of the State of New York to give to a decree of that character rendered in Connecticut, within the borders of the State of New York and as to its own citizens, such effi- cacy as it may be entitled to in view of the public policy of that State, we hold that the decree of the court of Connecticut rendered under the circumstances stated was not entitled to obligatory enforcement in the State of New York by virtue of the full faith and credit clause. It therefore follows that the court below did not violate the full faith and credit clause of the Constitution in refusing to admit the Connecticut decree in evidence ; and its judgment is, therefore, Affirmed. Holmes, J., with whom concurred Harlan, Brewer, and Brown, JJ., dissenting.' 2 I do not suppose that civilization will come to an end whichever way this case is decided. But as the reasoning which prevails in the mind of the majority does not convince me, and as 1 think that the decision not only reverses a previous well-considered decision of this court but is likely to cause considerable disaster to innocent persons and to bas- tardize children hitherto supposed to be the offspring of lawful marriage, I think it proper to express my views. Generally stated, the issue is whether, when a husband sues in the court of his domicil for divorce from an absent wife on the ground of her desertion, the jurisdiction of the court, if there is no personal service, depends upon the merits of the case. If the wife did desert her husband in fact, or if she was served with process, 1 understand it not to be disputed that a decree of divorce in the case supposed would be conclusive, and so I understand it to be admitted that if the court of another State on a retrial of the merits finds them to have been decided rightly its duty will be to declare the decree a bar to its inquiry. The first form of the question is whether it has a right to inquire into the merits at all. But I think that it will appear directly that the issue is narrower even than that, In Atherton v. Atherton, 181 U. S. 155, a divorce was granted on the ground of desertion, to a husband in Kentucky against a wife who had "established herself in New York. She did not appear in the suit and the only notice to her was by mail. Before the decree was made i The learned judge here examined numerous decisions of State courts, and con- cluded that they did not estahlish the proposition that such a decree as the one here examined was entitled to full faith and credit. — Ei>. - Another dissenting opinion of Brown, J., is omitted — Ed. SECT. IV.] HADDOCK V. HADDOCK. 481 she sued in New York for a divorce from bed and board, but pending the latter proceedings the Kentucky suit was brought to its end. The husband appeared in New York and set up the Kentucky decree. The New York court found that the wife left her husband because of his cruel and abusive treatment, without fault on her part, held that the Kentucky decree was no bar, and granted the wife her divorce from bed and board. The New York decree, after being affirmed by the Court of Appeals, was reversed by this court on the ground that it did not give to the Kentucky decree the faith and credit which it had by law in Kentucky. Of course, if the wife left her husband because of his cruelty and without fault on her part, as found by the New York court, she was not guilty of desertion. Yet this court held that the question of her desertion was not open but was conclusively settled by the Kentucky decree. There is no difference, so far as I can see, between Atherton v. Ath- erton and the present case, except that in Atherton v. Atherton the forum of the first decree was that of the matrimonial domicil, whereas in this the court was that of a domicil afterwards acquired. After that decision any general objection to the effect of the Connecticut decree on the ground of the wife's absence from the State comes too late. 80 does any general objection on the ground that to give it effect invites a race of diligence. I therefore pass such arguments without discussion, although they seem to me easy to answer. Moreover, Atherton v. Atherton decides that the jurisdiction of the matrimonial domicil, at least, to grant a divorce for the wife's desertion without personal ser- vice, does not depend upon the fact of her desertion, but continues even if her husband's cruelty has driven her out of the State and she has ac- quired a separate domicil elsewhere upon the principles which we all agree are recognized by this court. I can see no ground for giving a less effect to the decree when the husband changes his domicil after the separation has taken place. The question whether such a decree should have a less effect is the only question open, and the issue is narrowed to that. No one denies that the husband may sue for divorce in his new domicil, or, as I have said, that if he gets a decree when he really has been deserted, it will be binding everywhere. Hawkins v. Kagsdale, 80 Ky. 353, cited 181 U. S. 162; Cheely ■». Clayton, 110 U. S. 701, 705. It is unnecessary to add more cases. The only reason which I have heard suggested for holding the decree not binding as to the fact that he was deserted, is that if he is deserted his power over the matrimonial domicil remains so that the domicil of the wife accompanies him wherever he goes, whereas if he is the deserter he has no such power. Of course this is a pure fiction, and fiction always is a poor ground for changing substantial rights. It seems to me also an inadequate fiction, since by the same principle, if he deserts her in the matrimonial domicil, he is equally powerless to keep her domicil there, if she moves into another State. The truth is that jurisdict ion no more depends upon both parlies having their domicil 482 HADDOCK V. HADDOCK. [CHAP. III. within the State, than it does upon the presence of the defendant there, as is shown not only by Atherton v. Atherton, but by the rights of the wife in the matrimonial domicil when the husband deserts. There is no question that a husband may establish a new domicil for himself, even if he has deserted his wife. Yet in these days of equality I do not suppose that it would be doubted that the jurisdiction of the court of the matrimonial domicil to grant a divorce for the desertion remained for her, as it would for him in the converse case. See Cheever v. Wilson, 9 Wall. 108. Indeed, in Ditson v. Ditson, 4 R. I. 87, which, after a quotation of Judge Cooley's praise of it, is stated and relied upon as one of the pillars for the decision of Atherton v. Atherton, a wife was granted a divorce, without personal service, in the State of a domicil acquired by her after separation, on the sole ground that in the opinion of the court its decree would be binding everywhere. If that is the law it disposes of the case of a husband under similar circumstances, that is to say of the present case, a fortiori; for I suppose that the notion that a wife can have a separate domicil from her husband is a modern idea. At least Ditson v. Ditson confirms the assumption that jurisdiction is not dependent on the wife's actually residing in the same State as her husband, which has been established by this court. Ather- ton v. Atherton, 181 U. S. 155 ; Maynard v. Hill, 125 U. S. 190 ; Cheever v. Wilson, 9 Wall. 108. When that assumption is out of the way, I repeat that I cannot see any ground for distinguishing between the ex- tent of jurisdiction in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired. I also repeat ant! emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the jurisdiction in the later acquired domicil because the domicil of the wife does not follow his, the same fact ought to destroy the jurisdiction in the matrimonial domicil if in consequence of the husband's conduct the wife has left the State. But Atherton v. Atherton decides that it does not. It is important to bear in mind that the present decision purports tc respect and not to overrule Atherton v. Atherton. For that reason- among others, I spend no time in justifying that case. And yet it ap pears to me that the whole argument which prevails with the majority of the court is simply an argument that Atherton v. Atherton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Justice Gray confined the decision to the case before the court. Evidently,. I should say, from internal evidence, in deference to scruples which he die not share. But a court by announcing that its decision is confined to the facts before it does not decide in advance that logic will not drive it fur ther when new facts arise. New facts have arisen. I state what logir seems to me to require if that case is to stand, and I think it reasonable to ask for an articulate indication of how it is to be distinguished. I have heard it suggested that the difference is one of degree. I am the last man in the world to quarrel with a distinction simply because it SECT. IV.] HADDOCK V. HADDOCK. 483 is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it. But the line which is drawn must be justified by the fact that it is a little nearer than the nearest opposing case to one pole of an admitted antithesis. When a crime is made burglary by the fact that it was committed thirty seconds after one hour after sun- set, ascertained according to mean time in the place of the act, to take an example from Massachusetts (R. L. c. 219, § 10), the act is a little nearer to midnight than if it had been committed one minute earlier, and no one denies that there is a difference between night and day. The fixing of a point when day ends is made inevitable by the admis- sion of that difference. But I can find no basis for giving a greater jurisdiction to the courts of the husband's domicil when the married pair happen to have resided there for a month, even if with intent to make it a permanent abode, than if they had not lived there at all. I may add, as a consideration distinct from those which I have urged, that I am unable to reconcile with the requirements of the Constitution, Art. 4, § 1, the notion of a judgment being valid and binding in the State where it is rendered, and yet depending for recognition to the same extent in other States of the Union upon the comity of those States. No doubt some color for such a notion may be found in State decisions. State courts do not always have the Constitution of the United States vividly present to their minds. I am responsible for lan- guage treating what seems to me the fallacy as open, in Blackinton v. Blackinton, 141 Mass. 432, 436. But there is no exception in the words of the Constitution. " If the judgment is conclusive in the State where it was pronounced it is equally conclusive everywhere." Christmas v. Russell, 5 Wall. 290, 302 ; Marshall, C. J., in Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryee, 7 Cranch, 481, 485; Story, Const. § 1313. See also Hancock National Bank v. Farnum, 176 U. S. 640, 644, 645. I find no qualification of the rule in Wisconsin v. Pelican Ins. Co., 127 U. S. 265. That merely decided, with regard to a case not within the words of the Constitution, that a State judgment could not be sued upon when the facts which it established were not a cause of action outside the State. It did not decide or even remotely suggest that the judgment would not be conclusive as to the facts if in any way those facts came in question. It is decided as well as admitted that a decree like that rendered in Connecticut in favor of a deserting husband is binding in the State where it is rendered. Maynard v. Hill, 125 U. S. 190. I think it enough to read that case in order to be convinced that at that time the court had no thought of the divorce being confined in its effects to the Territory where it was granted, and enough to read Ather- ton v. Atherton to see that its whole drift and tendency now are reversed and its necessary consequences denied. 484 WEATHERLEY V. WEATHERLEY. [CHAP. III. WEATHERLEY v. WEATHERLEY. High Court of the Transvaal Province. 1879. [Reported Transv. Prov. Rep. 66.] This was an action for divorce a vinculo matrimonii, brought by the husband, Colonel Weatherley, on the ground of his wife's adultery, alleged to have been committed in Pretoria with one Gunn. 1 Kotze, J. The parties were married in England in January, 1857, the plaintiff being at that time a lieutenant in a cavalry regiment. After the marriage, Colonel Weatherley and his wife proceeded to India. They subsequently returned to England, and left again in 1875 for South Africa, arriving in the Transvaal in January, 1876. Their domicile of origin is English, but the adultery, if any, was committed within this territory. During the hearing of the case, owing to the facts disclosed in evidence, I directed counsel, after the evidence had been taken, to argue the legal question whether or not the court had jurisdiction to entertain this suit for divorce, supposing the parties not to have acquired a new civil domicile of choice in this country. It was accordingly maintained, on behalf of the plaintiff, that there ought to have been a dilatory plea, or exception, to the jurisdiction of the court filed by the defendant, and that this not having been done, the court cannot, according to the Roman Dutch law which prevails in this country, of its own mere motion, raise the question of jurisdiction. Two authorities were cited in behalf of this position, viz., Merula, Man van Proced. (civ. pract.), lib. iv., tit. 40, ch. 1, n. 1, and Van der Linden, p. 414 (Henry's translation). But on examination it will be found that these writers, especially Merula, merely lay down that if the defendant wishes to take objection to the jurisdiction of the court, he must do so by way of preliminary exception before he pleads over, otherwise he submits himself to the jurisdiction of the court ; and not that, if he neglects to file a declinatory exception, the court is bound to hear the case. A similar rule is known to the English common law, by which a dilatory plea, e.g., to the jurisdiction, was not available after a plea in bar. So, it was further argued, on the authority of Van Leeuwen (Rom. Dutch Law, lib. v., chap. 8. § 4), that, by not having pleaded to the jurisdiction, the defendant must be taken to have tacitly consented that the court should have jurisdiction, and the court was consequently precluded from raising the point at the trial. Here, then, the question at once arises, whether the mere consent of parties can give the court jurisdiction? The passage in Van Leeuwen must be taken to refer to matters of a purely private and doubtful nature only ; and it is not now necessary to inquire how far, in matters of this kind, the doctrine " that consent of parties gives jurisdiction (prorogatio)" propounded by the Roman jurists, when treating of the provisions of 1 The statement of facts and arguments of counsel are omitted. — Ed. SECT. IV.] WEATHEKLEY V. WEATHERLEY. 485 the Lex Julia Judiciorum, and followed by the commentators of a later date, has effect at the present day. Van der Linden, in his sup- plement to Voet (ad Pandectas, lib. ii., tit. 1, § 14), saj's : '*Cum diversorum tribunalium institutio ad statum publicum pertineat ; nee pactionibus privatorum hominum Juri publico derogari possit." Now, although the law of domestic relations is treated of as a portion of the Jus privatum, the institution of a tribunal to decide on questions re- garding status, arising out of the domestic relations, and the exercise of jurisdiction in such cases, is a matter which pertains ad statum publi- cum, — to the public welfare of the whole community (cf. Pluber, Jus Hodiernum, iv. , 14, § 29). Marriage is not a mere ordinary private con- tract between the parties : it is a contract creating a status, and gives rise to important consequences directly affecting society at large. It lies, indeed, at the root of civilized society. If, then, in a matter of divorce, the bare consent of the parties can be held sufficient to give jurisdiction, there is no protection, no safeguard, against the parties acting in fraudem leyis ; but this it is the policy, as well as the duty, of every court of justice to discourage and prevent. Huber, in his Jus Hodiernum, 1. c. § 21-24, has very justly observed that such a doctrine would lead to endless confusion. I am clearty of opinion, therefore, that the mere consent of the parties in a question involving their matri- monial status, including divorce a vincido, cannot give the court juris- diction and make its decree legal, where, in the absence of such con- sent, the exercise of jurisdiction and the subsequent decree would be illegal. Nor is there anything to prevent the court, of its own mere motion, raising the question of jurisdiction. Were this not so, the court would be bound by the neglect or omission of the pleader who failed to file a proper declinatory exception. Moreover, it may sometimes hap- pen, as in this very case, that, only after the evidence has been part heard, the facts disclosed suggest the question whether or not, under the circumstances, the court has jurisdiction (cf. Van Leeuwen, R. D. Law, 5, 4, § 2, n. 6). A sentence of divorce pronounced by a competent court having jurisdiction of the subject-matter in one country, is, of course, binding on the courts of all civilized countries. But one of the most difficult and embarrassing questions of private international law is the question, when, and under what circumstances, will the tribunal of a given coun- try, declaring a valid marriage dissolved, have jurisdiction to do so, in order to cause its judgment to be respected and recognized by the courts of every other country? It is admitted that the courts of any country where the parties have their bona fide civil domicile, have jurisdiction to dissolve a valid marriage contracted elsewhere. Story, Bishop, Uurge, the law in Scotland, and the recent cases of Shaw u. Gould, L. R. 3 H. L. 83, and Wilson v. Wilson, L. R. 2 P. & D. 441, all agree in this. 1 . . . 1 The Learned judge, upon an examination of the facts, decided that Colonel Weath« erley was domiciled in England. Be then examined the law of England. — E». 486 WEATHERLEY V. WEATHERLEY. [CHAP. III. In Scotland, however, there exists no doubt or difficulty on the sub- ject. By the law of that country, which (as I shall show hereafter) is more analogous to the Roman Dutch Law, it has been laid down, by a uniform series of decisions, that the Scotch courts have jurisdiction, on proof of a just cause of divorce, to dissolve a marriage contracted in England, or any other foreign country, and they will sustain process of divorce to that effect, provided merely that such a domicile has been acquired in Scotland by the defendant as would be sufficient to found ordinary civil jurisdiction, viz., a simple residence of forty days (Er- skine, Inst. Bk. I., tit. 2, § 20, in notis). A forty days' residence in Scotland excludes all consideration of a foreign domicile. A citation served on the defendant at his dwelling-place, after a residence of forty days, is good and legal ; but if the citation be served personally on the defender, no residence of forty days is necessary. It is to be pointed out here that domicile of jurisdiction merely means a residence of fort}' days, wmether animo manendi or not is immaterial ; and the distinction between it and civil domicile, i.e., permanent residence, animo manendi, must not be lost sight of in discussing the question of jurisdiction. The doctrine in Scotland is based on the right of the Scotch court to redress any personal wrong, including therefore the delictum of adul- tery, committed by a defendant within the territory of Scotland ; whereas the English doctrine, which refuses to recognize the power of foreign tribunals to decree a dissolution of marriage between Eng- lish subjects who have no civil domicile (stricto sensu) in the foreign country, is founded upon the principle that divorce is a question of status, and can only be decreed by the courts of the place of domicile, for no nation is bound to recognize the judgment of a foreign tribunal in dissolving a marriage subsisting between its own domiciled subjects temporarily absent abroad. By so doing, the foreign tribunal inter- feres with the jurisdiction legis domesticw, and this no independent nation like England can be expected to tolerate. A difference of opinion and principle on this subject leads to the most serious consequences. If I were to hold that this court has juris- diction, and were to decree a divorce, the courts in England may ignore my decree altogether. Suppose, now, that Colonel Weatherley, and, in like manner, Mrs. Weatherley, were to enter into a second marriage, and that in each case issue is born of the second marriage, this second marriage would be valid, and the issue legitimate in the Transvaal, in Scotland, and perhaps in other countries, whereas by English law the second marriage would be invalid, the issue thereof bastard, and Colonel and Mrs. Weatherley would be guilty of bigamy, and punishable as felons. In the absence of any uniform rule, the court must lay down a principle and give a decision, and is, moreover, bound to state the reasons upon which it professes to act. When judges and lawyers of recognized eminence and reputation have, with great learning and ability, expressed different views on the subject, it behoves one, in the SECT. IV.] WEATHERLEY V. WEATHERLET. 487 language of a learned commentator, to tread both reverently and cau- tiously, and I therefore approach the question with some diffidence. Huber, in his Praslectio)ies,\o\. ii. , de conflictu legum, § 2, has laid it down as an axiom that all persons who are actually within the terri- tory of a given State, whether permanently or only for a temporary purpose, are subject to its laws and the jurisdiction of its courts. No doubt a mere temporary subject, subditus temporanius, as Voet (de Statutis, n. 5) terms it, is not liable to certain portions of the laws, which are alone applicable to domiciled subjects. Thus domiciled subjects (stricto se?isu) are liable to the discharge of public duties, the payment of taxes, and also exercise certain municipal rights and privileges from which he who is merely a temporary resident or visitor is excluded ; and this, it seems to me, is the meaning of Van der Keessel, in Thesis 30, so much pressed upon me by counsel for the defendant. But a temporary subject is amenable to the court, not merely in the case of crime, but also for every delict or wrongful act committed by him within its jurisdiction. Bynkershoek, de foro legatorum, cap. 3, to which, at the conclusion of the argument, my attention was drawn, also adopts this view. He says, that a mere temporary or casual visitor to Holland does not establish a forum in that country for all purposes, quia advena est, non subditus ; that is to say, not a domiciled subject, although he would come under the jurisdiction of the courts of Holland delicti causa. A temporary resident, therefore, would be liable for defamation, ordinar}* trespass, seduction, and the like, committed bv him in the foreign territorj'. In these instances the court of the place where the wrong is committed has power to give redress to the injured party ; why, then, should the court not have jurisdiction also to redress a matrimonial wrong, viz., adultery? Those who answer this question in the negative maintain that divorce is a matter of status, and must be referred to the lex domicilii of the parties. Thus, Lord Westbury, in Shaw v. Gould (L. R. 3 H. L. 83), observes: " Questions of personal status depend on the law of the actual domicile. It is said b} r a foreign jurist of authority (Rodenburg), and his works are cited with approba- tion by many recent writers : ' Unicum hoc ipsa rei natura ac necessitas invexit ut cum de statu et conditione hominum qua?ritur, solum modo judici, et quidem domicilii, universum in ilia jus sit attributum.' This position, that universum jus, — that is, jurisdiction which is complete, and ought to be everywhere recognized, does in all matters touching the personal status or condition of persons belong to the judge of that country where the persons are domiciled, — has been generally recog- nized." But it may be said, in answer to this, that it has not been generally recognized that jurisdiction belongs exclusively in all matters of status to the judge of the actual domicile alone for all purposes. Scotch judges and lawyers have adopted a different view, and John Voet distinctly controverts the doctrine of Rodenburg. In his com- mentary, ad Pamlectas, lib. 1, de Statutis, No. 8, after quoting the above passage from Rodenburg, he says: " Sed qua; ilia fuerit rei natura qua- necessitas satis urgens nee duni licuit animadvertere." 488 WEATHERLEY V. WEATHERLEY. [CHAP. III. Rodenburg argues that, in matters affecting the status of an individual, we should apply the law of one fixed place, viz., of the domicile ; for it would be absurd that a person should undergo a change of status in ever}' country he might happen to visit or pass through : e.g., that a part}' should be sui juris, or a wife in potentate, or a prodigal, in one place, and alieni juris, extra potestatem, and frugus in another place. This argument is said to be founded on convenience, and the rule ma}' now be taken to be that the personal status of a party, as defined by the law of his domicile, whether of origin or habitation, follows the person, like his shadow, everywhere (cf. Van der Keessel, Th. 42). But what is the precise extent or scope of this rule? Does it indis- criminately apply to all matters of status for all purposes? It may be sound and reasonable to lay down that a person who is a minor or prodigal by the law of his domicile should be so considered, even in a foreign country, as regards transactions entered into by him there. It may be that a married woman who is considered as a minor by the law of her domicile should be considered a minor in every other country. But then the law of the foreign country relating to minors and prodi- gals, where the transaction takes place and comes into question, is to be resorted to, and not the lex domicilii (cf. Huber, Prcelectiones, vol. ii., de conflictu legum, §§ 12, 13). On the other hand, the contract of marriage, which creates the status of husband and wife, depends for its validity on the law of the place where the marriage is celebrated, which is often not the law of the domicile. Here, then, the question whether the parties to the contract of marriage are husband and wife — a question of personal status in the strictest sense of the word — is determined by the lex loci contractus, and not by the law of the domi- cile of the parties. It may very fairly be doubted whether the doctrine of Rodenburg, which professes to be founded on convenience and ex- pediency, does not admit of a limitation. It may very fairly be doubted whether the rule can be extended so as to exclude a foreign tribunal from exercising its jurisdiction in matrimonial matters over persons who, although domiciled elsewhere, are nevertheless bona fide resident within the foreign country. The foreign law of England can in this case only be allowed to have effect in this territory, in so far as it does not interfere with our law and the authority of our courts, or with the rights of our citizens, with good government, and public utility. " Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potes- tati aut juri alterius imperantis ejusque civium prsejudicetur " (Huber, Prmlectiones, vol. ii., de conflictu legum, § 2). It is, moreover, the province of this court alone, and not of the foreign tribunal, to lay down what is the law applicable to the case before it, and what is most in accord with good government, justice, or public convenience in the Transvaal. 1 . . . 1 The learned judge here cited and examined at length passages from Burge, For- eign and Colonial Law, vol. i., p. 689, and Bishop, Marriage and Divorce, vol. ii., cli. x., § 138. — Ed. SECT. IV.] WEATHERLEY V. WEATHERLEY. 489 The principle that the courts of the parties' actual domicile alone can dissolve the marriage tie existing between them seems to me entirely inexpedient, and may lead to positive injustice. Expediency is al- together against such a rigid doctrine. Let me put a few examples. Suppose an English gentleman is appointed civil governor of a colony, say for five years, or is appointed a special commissioner to investigate certain matters in the colony. He leaves England, where he has his domicile, with his wife and family, and takes up his residence in the colony. While there, his wife commits adultery. Now the rule which the learned persons I have mentioned contend for, would effectually deprive the innocent husband of redress at the hands of the tribunal within whose territory the commission of adultery took place. Take another instance. An English engineer is employed by a company to construct a line of railway or open a mine in the Transvaal. He brings out his wife and family with him to this country, where he will probably remain for a few years. Under these circumstances the domicile is still English. The husband commits adultery and deserts his wife ; is, now, this court precluded from affording protection and redress to the in- nocent wife because, although the adultery was committed here, her domicile is in England, she being only a temporary resident in the Transvaal? Would the refusal of the court to exercise jurisdiction not be a denial of justice to her? Is she to be compelled to seek relief in a court 6,000 or 7,000 miles away from the place where the wrong was committed and all the witnesses reside? It may often, under such circumstances, be practically impossible for her to proceed to England without pecuniary assistance from her husband, which she is not likely to obtain. Or suppose that in all these instances the wife commits adultery, is the husband to wait until his return to England before he can hope to be released from a bond uniting him to an adulteress? Pursue this matter a little further, and suppose that the governor, or the special commissioner, is ordered to another colony, or the engineer is obliged to accept a fresh engagement in some other place, what is each of them to do with his guilty wife? Must each of them wait till he returns to the country of his domicile before instituting proceedings, when probably the witnesses to testify to her adultery are all dead? The constant and increasing intercourse going on between England and her colonies, which are to a great extent, for purposes of jurisdic- tion, foreign countries, will suggest numerous other examples; and it seems to me that a strict adherence to the doctrine, which excludes the exercise of jurisdiction on the part of the tribunal of the place where the adultery is committed, and entirely confines it to the tribunal of the actual domicile, is productive of much delay and expense, inconvenience and injustice. I cannot help thinking that Rodenbur»; never intended that the rule he laid down on the ground of convenience should receive the extensive and exclusive application which some lawyers have given to it. The rule is supposed to be based on convenience, and as soon, therefore, as it ceases to be convenient by causing positive inconven- 490 WEATHERLEY V. WEATHERLEY. [CHAP. IIL ience, it ought no longer to apply. Cessante ratione legis cessat ley ipsa J The present case comes to this : An English gentleman and his wife are temporary residents in the Transvaal. The court of this country recognizes their status of husband and wife. It will compel them to fulfif and observe towards each other all the duties to which the rela- tion they occupy gives rise. It will recognize the authority of the father over the children of the marriage, and is bound to redress all wrongs and injuries peculiar to the marriage relation committed within the limits of the territory over which its jurisdiction extends. If the husband ill-treats his wife, refuses her support, or deserts her, she has a right to seek redress from this court, within whose jurisdiction she and her husband reside, and where the wrong is committed. This court may entertain a suit for restitution of conjugal rights at the instance of either the husband or the wife. Why may it not, then, decree a divorce a vinculo on the ground of adultery? Where is the law which forbids it. Where is the law which says, You shall recognize the relation of husband and wife, but shall forbear to take cognizance of and redress wrongs committed in violation of the marriage relation within your jurisdiction? 2 . . . Upon the whole, then, I have come to the conclusion that this court has jurisdiction, for the following reasons, viz. : 1st. Upon the genera" ground that, by Roman Dutch Law, the court has power to take cogni- zance of any wrong or delict committed within this territory by persons having an actual bona fide residence here at the time, it being imma- terial whether such residence amounts to a domicilium or not, and to apply the suitable remedy thereto. 2d. Upon the ground that sound policy, expediency, and justice demand that jurisdiction should be assumed. 3d. Upon the ground that the law of Scotland, which is most analogous to the Roman Dutch law, favors the assumption an- exercise of jurisdiction under the cirumstances of this case. There are, however, certain special features in this case, connected with the question of jurisdiction, which must not be lost sight of. The petitioner and respondent have had a bona fide residence of three years in this country. This is, as it were, a middle case. If, on the one hand, the parties are not domiciled here, on the other hand they are not mere casual travellers, — here to-day and there to-morrow. The) have not repaired to this country with the view of giving this cour jurisdiction in fraudem legis domicilii. The adultery, if any, was committed here, and the respondent has been personally served with the summons, and has entered appearance. The adultery of the wife i The learned judge here cited and examined a passage from Phillimore, Internat Law, vol. iv., ch. 21, § 96. — Ed. 2 The learned judge here quoted from the opinions of Lord Meadowbank in Utter ton v. Tewsh, Ferguson, 23, 57, of Lord Colonsay in Shaw r. Gould, L. R. 3 H. L. 95, and of the Lord Justice Clerk (Hope) in Shields v. Shields, 15 Sess. Cas. (N. S.) 142; and examined the case of Newberry v. Newberry, 1 Menz. Rep. 248 (cited).— Ed. gECT . IV .] WILHELM V. WILHKLM. 491 is recognized in all Protestant countries, including England (the locus domicilii), as a valid cause of dissolution a vinculo matrimonii. I he courts in England, therefore, cannot say, if I were to grant a decree dissolving the marriage, that the dissolution is grounded on a cause of divorce which, in England, is considered contra bonos mores, and at variance with the policy of its marriage laws. But these circumstances are, properly speaking, rather matters for the consideration of the courts in England than for this court. So long as different countries have different laws of divorce, so long will inconvenient consequences be the result. 1 WILHELM v. WILHELM. Court of Appeal of Paris. 1896. [Reported 23 Clunet, 149.] The Court The appellant, a Frenchwoman by birth, married at Paris February 13, 1875, John Henry Wilhelm, a German subject. In June 1876, he abandoned the conjugal domicile without letting her know where he had gone, and since that time the wife has had no news of him As a result, after several years of waiting, Mrs. W ilhclm hied a petition for divorce against her husband ; but the judges below declared themselves without jurisdiction because, the parties being foreigners, the French courts could not pass on such a question. But the incompetence of French courts to entertain suits between for- eigners is not absolute ; it is facultative only, the judge having power, according to the circumstances, to take or to refuse to take cognizance ' of the affair submitted to them. A proper occasion for making use of the power thus reserved to them exists when, as in this case, the domicile of the defendant is unknown, and consequently the plaintiff, a resident of France, cannot apply to any other court. On the merits : since the facts show that Wilhelm abandoned his wife many years ago, under conditions injurious to her, and that a divorce may be decreed against him, for these reasons the judgment appealed from is reversed, and it is adjudged that the Tribunal of the Seine was competent to pass upon the petition for divorce filed bv Mrs. Wilhelm. And since the cause is ripe for judgment, judg- ment is given on flic merits. Divorce is decreed between the Wil- helms on the wife's libel, with all the legal consequences. . . . i The learned judge here reviewed the evidence, and declined to grant a divorce on the ground of collusion. — Ed. t„,„ iqoo ion •A-his is now the established rule of the French courts. Cass. 18 (July, ^1882 (20 nJ, H7); Paris, 12 .Ian. 1894 (21 Clunet, 123) ; Paris, 7 Dec. 1894 (22 Clunet, md, virtual" oart ers thereof jointly, should first have been sued. If one ol he members of the firm was not joined it might be a bar to an aetmn "and, but it could only be pleaded in abatement m an aetmn m EugLnd. I think all the matters stated in the plea are mere matte, of procedure, and that the plea is bad. Mellor and Field, J J-, concurred. -, Judgment for the plaintiffs. 1 LE ROY v. BEARD. Supreme Court of the United States. 1849. [Reported 8 Howard's Reports, 451.] Woodbury, J. 8 This was an action of assumpsit for money had and recdved; and also counting specially, that, on the 17th o ^November 1836, the original defendant, Le Roy, in consideration of $1,800 then Paid to him by the original plaintiff, Beard, caused to be made to he fatter, at Milwaukie, Wisconsin, a conveyance signed by L Ro> and his wife, Charlotte. This conveyance was of a certain lot of land situated in Milwaukie, and contained covenants that they were seized in fee of the lot, and had good right to convey the same. Whereas it was averred, that, in truth, they were not so seized, nor authorized I to convey the premises, and that thereby Le Roy became liable to repay ^Unde^Leral instructions given by the Circuit Court for the South- ern District of New York, where the suit was instituted, the jury found a verdict for the original plaintiff, on which judgment was rendered in his favor, and which the defendant now seeks to reverse by writ of error. Among those instructions, which were excepted to by the i A rrmments of counsel are omitted. — Li>. . if Taff, Ward, 106 Mas, ,18 ; Benry Brig* Sons * Co * Njjjn (Antwerp 22 Julv 1893), 21 Clunet, 1080. See Carnegie ». Morrison, 2 Met 381. Sooftne 2; Whether an assignee of a ckose in action may sue in Ins own name. Boo-* Crist 17 III 450; Foss «. Nutting, 14 Gray, 484; Lodge v. Phelps, 2 Cai. Las. .5 1 see Levy Ley 78 Pa. 507. Whether an assigns for creditors may sue in h.s own see Levy 7' jeVy ' ' rbu 145 Tj S , 499 . Osborn v. First Nat. Bank, 1/5 Pa. 494, I;, 1 ' L. ST* otsnTtV. marrie. woman in her own name. Stoneman „. In. Hy., 52 N. Y. 429. — Ki>. » Part of the opinion only is given. — En. 34 530 HAMILTON V. SCHOENBEKGER. [CHAP. V. defendant, and are at this time to be considered, was, first, that " the action of assumpsit is properly brought in this court, upon the promises of the defendant contained in the deed, if any promises are made therein which are binding or obligator}' on the defendant." The conveyance in this case was made in the State of Wisconsin, and a scrawl or ink seal was affixed to it, rather than a seal of wax or wafer. By the law of that State, it is provided, that " any instrument, to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed." But in the State of New York it has been repeatedly held (as in Warren v. Lynch, 5 Johns. 239) that, by its laws, such device, without a wafer or wax, are not to be deemed a seal, and that the proper form of action must be such as is practised on an unsealed instrument in the State where the suit is instituted, and the latter must therefore be assumpsit. 12 Johns. 198; 2 Hill, 228, 544; 3 Hill, 493; 1 Denio, 376 ; 5 Johns. 329 ; Andrews et al. v. Herriott, 4 Cowen, 508, overrul- ing Meridith v. Hinsdale, 2 Caines, 362; 4 Kent, 451 ; 8 Peters, 362; Story's Conflict of Laws, 47. A like doctrine prevails in some other States. 3 Gill & Johns. 234 ; Douglas et al. v. Oldham, 6 N. H. 150. It becomes our duty, then, to consider the instruction given here, in an action brought in the Circuit Court of New York, as correct in rela- tion to the form of the remedy. It was obliged to be in assumpsit in the State of New York, and one of the counts was special on the prom- ise contained in the covenant. We hold this, too, without impairing at all the principle, that, in deciding on the obligation of the instrument as a contract, and not the remedy on it elsewhere, the law of Wiscon- sin, as the lex loci contractus, must govern. Robinson v. Campbell, 3 Wheat. 212. 1 HAMILTON v. SCHOENBERGER. Supreme Court of Iowa. 1877. [Reported 47 Iowa, 385.] The petitioner alleges that a judgment had been entered against him in the Benton District Court on a " judgment note," upon confession of judgment by an attorney of the court, not authorized to appear for him except by the power contained in the note ; and asks that the judgment be declared void and cancelled. The defendants demurred to this peti- tion. The demurrer was overruled, and judgment was rendered can- i Ace. Thrasher v. Everhart, 3 G. & J. 234 ; Broadhead v. Noyes, 9 Mo. 55 ; Andrews v. Herriott, 4 Cow. 508. See Williams v. Haines, 27 la. 251. — Ed. CHAP. V.] MINERAL POINT RAILROAD CO. V. BARRON. 531 celling the judgment in favor of defendants against plaintiff. The defendants appeal. 1 Day, C. J. So far as we are advised it has never been the under- standing of the profession nor of the business community in this State- that warrants of attorney to confess judgment had any place in our law. A confession of judgment pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of this State. Parties cannot by contract made in another State engraft upon our procedure here remedies which our laws do not contemplate nor authorize. We are fully satisfied that the demurrer to the petition was properly overruled. Affirmed. MINERAL POINT RAILROAD CO. v. BARRON. Supreme Court of Illinois. 1876. [Reported 83 Illinois, 365. J Craig, J. 2 Under the laws of Wisconsin, had the proceedings been instituted in that State, the wages of the defendant in the original ac- tion were exempt from garnishment, and it is urged by appellant, that, as the parties resided in that State and the debt was there incurred, the exemption laws of Wisconsin must control, although the proceedings for the collection of the debt were commenced in this State. It is true, the validity of a contract is to be determined by the law of the place where it is made, but the law of the remedy is no part of the contract, as is well said b\- Parsons on Contracts, vol. 2, page 588 : "But on the trial, and in respect to all questions as to the forms or methods, or conduct of process or remedy, the law of the place of the forum is applied." In Sherman v. Gassett, 4 Oilman, 521, after referring to a number of cases in illustration of the rule, it is said : "The cases above referred to, although not precisely analogous, yet settle the principle that the /<./• loci only governs in ascertaining whether the contract is valid, and what the words of the contract mean. When the question is settled that the contract of the parties is legal, and what is the true interpreta- tion of the language employed by the parties in framing it, the lex loci ceases, and the lex fori steps in and determines the time, the mode, and the extent of the remedy." Statutes of limitations fixing the time within which an action may be brought, laws providing for a set-off in certain actions, and statutes providing that certain articles of personal property, wearing apparel, 1 'flu- statement of fai I - has been abridged, and part of the opinion omitted. — Ed. 2 Part of tin- opinion only is given. — En. 532 GIBB^ V. HOWARD. [CHAP. V. farming implements, and the tools of a mechanic shall be exempt from levy and sale upon execution, have always, so far as our observation goes, been regarded by courts as regulations affecting the remedy which might be enacted by each State, as the judgment of the legislature might think for the best interests of the people thereof. Bronson v. Kinzie, 1 Howard, 811. The statute of Wisconsin, under which appellant was not liable to be garnisheed, was a law affecting merely the remedy where an action should be brought in the courts of that State. That law, however, can- not be invoked where the remedy is sought to be enforced in the courts of this State. The remedy must be governed by the laws of the State where the action is instituted. 1 GIBBS v. HOWARD. Superior Court of Judicature, New Hampshire. 1820. [Reported 2 New Hampshire, 296.] This was an action of assumpsit upon a note of hand, dated Septem- ber 29, 1817, for $57, made by Howard, and payable to Almon Burgess, or order, in the month of April, 1818 ; and on the 31st of October, 1817, indorsed by Burgess to Patience Cone, then sole, now the wife of Gibbs, the plaintiff. The defendant pleaded the general issue, and gave notice of a set-off consisting of three notes of hand, made by Almon Burgess, and pay- able to three several persons, and by them indorsed to the defendant, November 1, 1817. The cause was submitted to the decision of the court upon the fol- lowing facts. The note described in the declaration was made by Howard, and at the time when made, the original parties to it were both inhabitants of the State of Vermont. The same note was for a valuable consideration indorsed to Patience Cone, then an inhabitant of Vermont, before it became due, and before the defendant had any inter- 1 Ace. Chic, R. I. & P. Ry. v. Sturm, 174 U. S. 170 ; Boykin v. Edwards, 21 Ala. 201 ; Broadstreet v. Clark, "65 la. 670; B. & M. R. R. v. Thompson, 31 Kan. 180, 1 Pac. 622 ; Morgan v. Neville, 74 Pa. 52. But see Mo. P. Ry. v. Sharitt, 43 Kan. 385, 23 Pac. 430 ; Drake v. L. S. & M. S. Ry., 69 Mich. 168, 179, 37 N. W. 70. In the last case, Morse, J., said : " It must be held, I think, not only as a matter of sim- ple justice, but as sound law, which means justice, that where the creditor, debtor, and garnishee, at the time of the creation of both debts, are all residents and doing business in Indiana, and both debts are created, and intended to be payable, in that State, the exemption of wages is such an incident and condition of the debt from the employer that it will follow the debt, if the debt follows the person of the garnishee into Michi- gan, and attach itself to every process of collection in this State, unless jurisdiction is obtained over the person of the principal debtor ; that it becomes a vested right in rem, which follows the debt into any jurisdiction where the debt may be considered as going. — Ed. CHAP. V.] TOWNSEND V. JEMISON. 533 est in the notes mentioned in the set-off. Gibbs is an inhabitant of Massachusetts. There is a statute of Vermont, passed on the 31st October, 1798, by which it is enacted, " that in all actions on indorsed notes it shall be "lawful for the defendant to plead an offset of all de- mands proper to be plead in offset which the defendant may have against the original payee, before notice of such an indorsement against the indorsee, and may also plead or give in evidence on the trial of any such action, any matter or thing which would equitably dis- charge the defendant in an action brought in the name of the original DUVGG. And it was agreed, that if the court should be of opinion that the defendant could not avail himself of the set-off filed in the case, judg- ment should be rendered for the plaintiffs for the amount of the note described in the declaration. By the Court. It is very clear that the notes, which the defendant holds against Burgess, are not a legal set-off in this action by the laws of this State ; and it is equally clear, that we can take no notice of the statute of Vermont. The lex loci must settle the nature, validity, and interpretation of contracts, but it extends no further. The laws of the State in which contracts are attempted to be enforced, must settle what is the proper course of judicial proceedings to enforce them. The stat- ute of Vermont relates merely to the remedy, by which a contract may be enforced. There must, therefore, according to the agreement of the parties, be Judgment for the plaintiff. 1 TOWNSEND v. JEMISON. Supreme Court of the United States. 1849. [Reported 9 Howard's Reports, 407.] Wayne, J. 2 This suit has been brought here from the District Court of the United States for the Middle District of Alabama. The defendant in the court below, the plaintiff here, besides other pleas, pleaded that the cause of action accrued in Mississippi more than three years before the suit was brought; and that the Mississippi statute of limitations barred a recovery in the District Court of Ala- bama. The plaintiff demurred to the plea. The court sustained the demurrer. We do not think it necessary to do more than to decide this point in the case. The rule in the courts of the United States, in respect to pleas of the statutes of limitation, has always I.e..,, that they strictly affect the ' An-. Meyer <■. Dree er, 16 <'. 15. n. b. 646 (semble); Savery v. Savery, 3 la. 271; Davi-, v. Moil, i,, 5 Bu ih, 160.— Ed. 2 Tin: opinion only is given ; ii sufficiently Btatea the case. — Ed. 534 TOWNSEND V. JEMISON. [CHAP. V. remedy, and not the merits. In the case of McElmoyle v. Cohen, 13 Peters, 312, this point was raised, and so decided. All of the judges were present and assented. The fullest examination was then made of all the authorities upon the subject, in connection with the diversi- ties of opinion among jurists about it, and of all those considerations which have induced legislatures to interfere and place a limitation upon the bringing of actions. We thought then, and still think, that it has become a formulary in international jurisprudence, that all suits must be brought within the period prescribed by the local law of the country where the suit is brought, — the lex fori ; otherwise the suit would be barred, unless the plaintiff can bring himself within one of the exceptions of the statute, if that is pleaded by the defendant. This rule is as fully recognized in foreign jurisprudence as it is in the common law. We then referred to authorities in the common law, and to a summary of them in foreign jurisprudence. Burge's Com. on Col. and For. Laws. They were subsequently cited, with others besides, in the second edition of the Conflict of Laws, 483. Among them will be found the case of Leroy v. Crowninshield, 2 Mason, 151, so much relied upon b}- the counsel in this case. Neither the learned examination made in that case of the reasoning of jurists, nor the final conclusion of the judge, in opposition to his own inclinations, escaped our attention. Indeed, he was here to review them, with those of us now in the court who had the happiness and benefit of being associated with him. He did so with the same sense of judicial obligation for the maxim, Stare decisis et non qxdeta movere, which marked his official career. His language in the case in Mason fully illustrates it: " But I do not sit here to consider what in theory ought to be the true doctrines of the law, following them out upon principles of philosophy and juridical reasoning. My humbler and safer duty is to administer the law as I find it, and to follow in the path of authority, where it is clearly defined, even though that path may have been explored by guides in whose judgment the most implicit confidence might not have been originally reposed." Then follows this declaration : " It does appear to me that the question now before the court has been settled, so far as it could be, by authorities which the court is bound to respect." The error, if any has been committed, is too strongly engrafted into the law to be removed with- out the interposition of some superior authority. Then, in support of this declaration, he cites Huberus, Voet, Pothier, and Lord Kames, and adjudications from English and American courts, to show that, whatever may have been the differences of opinion among jurists, the uniform administration of the law has been, that the lex loci contractus expounds the obligation of contracts, and that statutes of limitation prescribing a time after which a plaintiff shall not recover, unless he can bring himself within its exceptions, appertain ad tempus et modicm actionis instituendce and not ad valorem contractus. Williams v. CHAI\ V.] TOWNSEND V. JEMISON. 535 Jones, 13 East, 439 : Nash v. Tupper, 1 Caines, 402 ; Ruggles v. Keeler, 3 Johns. 263; Pearsull v. Dwight, 2 Mass. 84; Decouehe v. Savetier, 3 Johns. Ch. 190, 218 ; McCluny v. Silliman, 3 Peters, 276 ; Hawkins v. Barney, 5 Peters, 457 ; Bank of the United States v. Donnally, 8 Peters, 361 ; McElinoyle v. Cohen, 13 Peters, 312. There is nothing in Shelby v. Guy, 11 Wheaton, 361, in conflict with what this court decided in the four last-mentioned cases. Its action upon the point has been uniform and decisive. In cases before and since decided in England, it will be found there has been no fluc- tuation in the rule in the courts there. The rule is, that the statute of limitations of the country in which the suit is brought may be pleaded to bar a recovery upon a contract made out of its political jurisdiction, and that the limitation of the lex loci contractus cannot be. 2 Bing- ham, New Cases, 202, 211 ; Don v. Lippman, 5 Clark & Fin. 1, 16, 17. It has become, as we have already said, a fixed rule of the jus gentium privatum, unalterable, in our opinion, either in England or in the States of the United States, except by legislative enactment. We will not enter at large into the learning and philosophy of the question. We remember the caution given by Lord Stair in the sup- plement to his Institutes (p. 852), about citing as authorities the works and publications of foreign jurists. It is appropriate to the occasion, having been written to correct a mistake of Lord Tenterden, to whom no praise could be given which would not be deserved by his equally distinguished contemporary, Judge Story. Lord Stair says: " There is in Abbott's Law of Shipping (5th edition, p. 365) a singular mis- take ; and, considering the justly eminent character of the learned author for extensive, sound, and practical knowledge of the English law, one which ought to operate as a lesson on this side of the Tweed, as well as on the other, to be a little cautious in citing the works and pub- lications of foreign jurists, since, to comprehend their bearings, such a knowledge of the foreign law as is scarcely attainable is absolutely requisite. It is magnificent to array authorities, but somewhat humili- ating to be detected in errors concerning them ; — yet how can errors be avoided in such a case, when every day's experience warns us of the prodigious study necessary to the attainment of proficiency in our own law?° My object in adverting to the mistake in the work referred to is, not to depreciate the author, for whom I entertain unfeigned respect, but to show that, since even so justly distinguished a lawyer fails when lie travels beyond the limits of his own code, the attempt must be infi- nitely hazardous with others." We will now venture to suggest the causes which misled the learned judge in Leroy v. Crowninshield into a conclusion, that, if the question before him had been entirely new, his inclination would strongly lead him to declare, that where all remedies are barred or discharged by the /<.,- loci contractus, and have operated upon the case, then the bar may be pleaded in a foreign tribunal, to repel any suit brought to enforce Hi- debt. 536 TOWNSEND V. JEMISON. [CHAP. V. We remark, first, that only a few of the civilians who have written upon the point differ from the rule, that statutes of limitation relate to the remedy and not to the contract. If there is any case, either in our own or the English courts, in which the point is more discussed than it is in Leroy v. Crowninshield we are not acquainted with it. In every case but one, either in England or in the United States, in which the point has since been made, that case has been mentioned, and it has carried some of our own judges to a result which Judge Story himself did not venture to support. We do not find him pressing his argument in Leroy v. Crowninshield in the Conflict of Laws, in which it might have been appropriately done, if his doubts, for so he calls them, had not been removed. Twenty years had then passed between them. In all that time, when so much had been added to his learning, really great before, that by common consent he was estimated in jurisprudence par summis, we find him, in the Conflict of Laws, stating the law upon the point in opposition to his former doubts, not in deference to authority alone, but from declared conviction. The point had been examined by him in Leroy v. Crowninshield without any consideration of other admitted maxims of international jurisprudence, having a direct bearing upon the subject. Among others, that the obligation of every law is confined to the State in which it is established, that it can only attach upon those who are its subjects, and upon others who are within the territorial jurisdiction of the State ; that debtors can only be sued in the courts of the jurisdic- tion where they are ; that all courts must judge in respect to remedies from their own laws, except when conventionally, or from the decisions of courts, a comity has been established between States to enforce in the courts of each a particular law or principle. When there is no positive rule, affirming, denying, or restraining the operation of foreign laws, courts establish a comity for such as are not repugnant to the policy or in conflict with the laws of the State from which they derive their organization. We are not aware, except as it has been brought to our notice by two cases cited in the argument of this cause, that it has ever been done, either to give or to take away remedies from suitors, when there is a law of the State where the suit is brought which regulates remedies. But for the foundation of comity, the man- ner of its exercise, and the extent to which courts can allowably carry it, we refer to the case of the Bank of Augusta v. Earle, 13 Peters, 519, 589 ; Conflict of Laws, Comity. From what has just been said, it must be seen, when it is claimed that statutes of limitation operate to extinguish a contract, and for that reason the statute of the State in which the contract was made may be pleaded in a foreign court, that it is a point not standing alone, disconnected from other received maxims of international jurisprudence. And it may well be asked, before it is determined otherwise, whether contracts by force of the different statutes of limitations in States are CHAP. V.] TOWNSEND V. JEMISON. 537 not exceptions from the general rule of the lex loci contractus. There are such exceptions for dissolving and discharging contracts out of the jurisdiction in which they were made. The limitations of remedies, and the forms and modes of suit, make such an exception. Confl. of Laws, 271, and 521 to 527. We may then infer that the doubts expressed in Lero}' v. Crowninshield would have been withheld if the point had been considered in the connection we have mentioned. We have found, too, that several of the civilians who wrote upon the question did so without having kept in mind the difference between the positive and negative prescription of the civil law. In doing so, some of them — not regarding the latter in its more extended signifi- cation as including all those bars or exceptions of law or of fact which may be opposed to the prosecution of a claim, as well out of the juris- diction in which a contract was made as in it — were led to the conclu- sion, that the prescription was a part of the contract, and not the denial of a remed}' for its enforcement. It may be as well here to state the difference between the two prescriptions in the civil law. Positive, or the Roman usucaptio, is the acquisition of propert}', real or persona], immovable or movable, by the continued possession of the acquirer for such a time as is described by the law to be sufficient. Erskine's Inst. 556. " Adject 'io dominii per continuationem posses sionis temporis legi definiti." Dig. 3. Negative prescription is the loss or forfeiture of a right by the pro- prietor's neglecting to exercise or prosecute it during the whole period which the law hath declared to be sufficient to infer the loss of it. It includes the former, and applies also to all those demands which are the subject of personal actions. Erskine's Inst. 560, and 3 Burge, 26. Most of the civilians, however, did not lose sight of the differences between these prescriptions, and if their reasons for doing so had been taken as a guide, instead of some expressions used by them, in respect to what may be presumed as to the extinction or payment of a claim, while the plea in bar is pending, we do not think that any doubt would have been expressed concerning the correctness of their other conclu- sion, that statutes of limitation in suits upon contracts only relate to the remedy. But that was not done, and, from some expressions of Pothier and Lord Kames, it was said, " If the statute of limitations does create, proprio vigore, a presumption of the extinction or payment of the debt, which all nations ought to regard, it is not easy to see why the presumption of such payment, thus arising from the lex loci >-o/i- tractus, should not be as conclusive in every other place as in the place of the contract." And that was said in Lerov v. Crowninshield, in op- position to the declaration of both of those writers, that in any othei place than that of the contract such a presumption could not be made to defeat a law providing for proceedings upon suits. Here, turning aside for an instant from our main purpose, we find the beginning or source of those constructions of the English statutes of limitation which almost made them useless \'<>v the accomplishment of their end. 538 TOWNSEND V. JEMISON. [CHAP. V. Within a few years, the abuses of such constructions have been much corrected, and we are now, in the English and American courts, nearer to the legislative intent of such enactments. But neither Pothier nor Lord Karnes meant to be understood, that the theory of statutes of limitation purported to afford positive pre- sumptions of payment and extinction of contracts, according to the laws of the place where they are made. The extract which was made from Pothier shows his meaning is, that, when the statute of limitations has been pleaded b\ T a defendant, the presumption is in his favor that he has extinguished and discharged his contract, until the plaintiff overcomes it by proof that he is within one of those exceptions of the statute which takes it out of the time after which he cannot bring a suit to enforce judicially the obligation of the defendant. The extract from Lord Kames only shows what may be done in Scotland when a process has been brought for pa3 - ment of an English debt, after the English prescription has taken place. The English statute cannot be pleaded in Scotland in such a case, but, according to the law of that forum, it may be pleaded that the debt is presumed to have been paid. And it makes an issue, in which the plaintiff in the suit may show that such a presumption does not apply to his demand ; and that without any regard to the prescription of time in the English statute of limita- tion. It is upon this presumption of payment that the conclusion in Lerov v. Crowninshield was reached, and as it is now universally ad- mitted that it is not a correct theory for the administration of statutes of limitation, we may say it was in fact because that theory was assumed in that case that doubts in it were expressed, contrary to the judgment which was given, in submission to what was admitted to be the law of the case. What we have said may serve a good purpose. It is pertinent to the point raised by the pleading in the case before us, and in our judgment there is no error in the District Court's having sustained the demurrer. Before concluding, we will remark that nothing has been said in this case at all in conflict with what was said by this court in Shelby v. Guy, 11 Wheaton, 361. The distinctions made by us here between statutes giving a right to property from possession for a certain time, and such as only take away remedies for the recovery of property after a certain time has passed, confirm it. In Shelby v. Guy this court declared that, as by the laws of Virginia five years' bona fide posses- sion of a slave constitutes a good title upon which the possessor may recover in detinue, such a title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brought by a third party in those courts. The same had been previously ruled in this court in Brent v. Chapman, 5 Cranch, 358 ; and it is the rule in all cases where it is declared by statute that all rights to debts due more than a prescribed term of years shall be deemed extinguished, and that all titles to real and personal property not pressed within the prescribed time shall give ownership to an adverse possessor. Such a law, though CHAP. V.] TOWNSEXD V. JEMISON. 539 one of limitation, goes directly to the extinguishment of the debt, claim, or-right, and is not a bar to the remedy. Lincoln v. Battelle, 6 Wend. 475 ; Confl. of Laws, 582. In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It is stated in the Conflict of Laws, 582, to be a settled point. The courts of Louisiana act upon it. We could cite other instances in which it has been announced in American courts of the last resort. In the cases of De la Vega v. Vianna, 1 Barn. & Adol. 284, and the British Linen Company v. Drummond, 10 Barn. & Cres. 903, it is said that, if a French bill of exchange is sued in England, it must be sued on according to the laws of England, and there the English statute of limitations would form a bar to the demand if the bill had been due for more than six years. In the case of Don v. Lippman, 5 Clark & Fin. 1, it was admitted by the very learned counsel who argued that case for the defendants in error, that, though the law for expounding a contract was the law of the place in which it was made, the remedy for enforcing it must be the law of the place in which it is sued. In that case will be found, in the argument of Lord Brougham before the House of Lords, his declaration of the same doctrine, sustained by very cogent reasoning, drawn from what is the actual intent of the parties to a contract when it is made, and from the inconveniences of pursuing a different course. In Beckford and others v. Wade, 17 Vesey, 87, Sir William Grant, acknowledging the rule, makes the distinction between statutes merely barring the legal remedy and such as prohibit a suit from being brought after a specified time. It was a case arising under the possessory law of Jamaica, which converts a possession for seven years under a deed, will, or other conveyance, into a positive absolute title, against all the world,— without exceptions in favor of any one or any right, however a party may have been situated during that time, or what- ever his previous right of property may have been. There is a statute of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee there is an act in some respects similar to the possessory law of Jamaica ; it gives an indefeasible title in fee simple to lands of which a person has had possession for seven years, excepting only from its operation infants, feme coverts, non compotes mentis, persons im- prisoned or beyond the limits of the United States and the territories thereof, and the heirs of the excepted, provided they bring actions within three years after they have a right to sue. Act of November 16, 1817, ch. 28, §§ 1, 2. So in North Carolina there is a provision in the act of 1715, ch. 17, § 2, with the same exceptions as in the act of Tennessee, the latter being probably copied substantially from the former. Thirty years' possession in Louisiana prescribes land, though possessed without title and mala fide. We have mentioned those acts in our own States only for the pur- pose of showing the difference between statutes giving title from posses- sion, and such as only limit the bringing of suits. It not unfrequently happens in legislation that such sections are found in statutes for the 540 THE HAERISBURG. [CHAP. T. limitation of actions. It is, in fact, because they have been overlooked that the distinction between them has not been recognized as much as it ought to have been, in the discussion of the point whether a certain time assigned by a statute, within which an action must be brought, is a part of the contract, or solely the remedy. The rule in such a case is, that the obligations of the contract upon the parties to it, except in well-known cases, are to be expounded by the lex loci contractus. Suits brought to enforce contracts, either in the State where they were made or in the courts of other States, are subject to the remedies of the forum in which the suit is, including that of statutes of limitation. Judgment affirmed. 1 THE HARRIS BURG. Supreme Court of the United States. 1886. [Reported 119 United States, 199.] This is a suit in rem, begun in the District Court of the United States for the Eastern District of Pennsylvania, on the 25th of February, 1882, against the steamer " Harrisburg," b}' the widow and child of Silas E. Rickards, deceased, to recover damages for his death caused by the negligence of the steamer in a collision with the schooner " Marietta Tilton," on the 16th of May, 1877, about one hundred yards from the Cross Rip Light Ship, in a sound of the sea embraced between the coast of Massachusetts and the Islands of Martha's Vineyard and Nantucket, parts of the State of Massachusetts. The steamer was en- gaged at the time of the collision in the coasting trade, and belonged to the port of Philadelphia, where she was duly enrolled according to the laws of the United States. The deceased was first officer of the schooner, and a resident of Delaware, where his widow and child also resided when the suit was begun. The statutes of Pennsylvania in force at the time of the collision provided that, " whenever death shall be occasioned by unlawful vio- lence or negligence, and no suit for damages be brought by the part}' injured, during his or her life," "the husband, widow, children, or parents of the deceased, and no other relative," k 'may maintain an action for and recover damages for the death thus occasioned." " The action shall be brought within one year after the death, and not there- after." Brightly's Purdon's Dig. 11th ed., 1267, §§3, 4, 5; Act of April 15, 1851, § 18 ; Act of April 6, 1855, §§ 1, 2. 1 Ace. Don v. Lippman, 5 CI. & Fin. 1 ; Alliance Bank v. Carey, 5 C. P. D. 429 ; Bank of U. S. v. Donnally, 8 Pet. 361 ; Burgett v. Williford, 56 Ark. 187, 19 S. W. 750 ; Atwater v. Townsend, 4 Conn. 47 ; Collins v. Manville, 170 111. 614, 48 N. E. 914 ; Labatt t;. Smith, 83 Ky. 599 ; Pearsall v. Dwight, 2 Mass. 84 ; Perkins v. Guy, 55 Miss. 153; Carson v. Hunter, 46 Mo. 467 ; Warren v. Lynch, 5 Johns. 239 ; Watson v. Brewster, 1 Barr, 381. — Ed. CHAI\ V.] THE HARRISBURG. 5-il By a statute of Massachusetts relating to railroad corporations, it was provided that " if, by reason of the negligence or carelessness of a corporation, or of the unfitness or gross negligence of its servants or agents while engaged in its business, the life of any person, being in the exercise of due diligence, ... is lost, the corporation shall be pun- ished by a fine not exceeding five thousand nor less than five hun- dred dollars, to be recovered by indictment and paid to the executor or administrator for the use of the widow and children." . . . ''Indict- ments against corporations for loss of life shall be prosecuted within one year from the injury causing the death." Mass. Gen. Sts. 18G0, c. 63, §§ 97-99 ; Stat. 1874, c. 372, § 163. 1 Waite, C. J. "We are entirely satisfied that this suit was begun too late. The statutes create a new legal liability, with a right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought oper- ates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. No one will pretend that the suit in Pennsylvania, or the indictment in Massachusetts, could be maintained if brought or found after the expi- ration of the year, and it would seem to be clear that, if the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. It matters not that no rights of innocent parties have attached during the delay. Time has been made of the essence of the right, and the right is lost if the time is disre- garded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limita- tions of the right. No question arises in this case as to the power of a court of admiralty to allow an equitable excuse for delay in suing, be- cause no excuse of any kind has been shown. As to this, it only appears that the wrong was done in May, 1877, and that the suit was not brought until February, 1882, while the law required it to be brought within a year. The decree of the Circuit Court is reversed, and the cause remanded, with instructions to dismiss the libel. 2 1 Only so much of the case as involves the question of limitation of time is given. Arguments of counsel are omitted. — Ed. 2 See Brunswick Terminal Co. v. Bank, 99 Fed. 635. — Ed. 542 SEA GROVE BUILDING, ETC., ASSO. V. STOCKTON. [CHAP. V. SEA GROVE BUILDING AND LOAN ASSOCIATION v. STOCKTON. Supreme Coukt of Pennsylvania. 1892. [Reported 148 Pennsylvania, 146.] Proceeding upon a bond secured by a mortgage of real estate in New Jersey. Judgment having been entered upon the bond, was opened by the court, and by agreement of counsel the case was considered as though a set. fa. had been issued and proper pleas pleaded by defendant. Defendant's points were as follows : — "(1) The act of assembly of the State of New Jersey approved March 23, 1881, amendatory of the act of March 12, 1880, is a bar to any recovery by the plaintiff in this action, and the verdict must be for the defendant. " (2) Under all the evidence in the cause, the verdict must be for the defendant." The court directed a verdict for the plaintiff, reserving the above points. Subsequently Hemphill, J., entered judgment for defendant, delivering the following opinion : — The plaintiff's claim in this case is upon a judgment entered in this court for a balance alleged to be due upon a bond that accompanied a mortgage, both of which were executed in the State of New Jersey, and given for the same debt ; and the question for our determination is raised by the following point, presented by the defendant on the trial of the cause, and reserved by the court, viz. : that " The act of assem- bly of the State of New Jersey approved March 23, 1881, amendatory of the act of March 12, 1880, is a bar to any recovery by the plaintiff in the action, and the verdict must be for the defendant." The first section of said act of March 23, 1881, is as follows : " That in all cases where a bond and mortgage has or ma* hereafter be given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the mortgage, and if, at the sale of the mortgaged premises, under said foreclosure proceedings, the said premises should not sell for a sum sufficient to satisfy said debt, interest, and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale of said mortgaged premises, and judgment shall be rendered and execution issue only for the balance of the debt and costs of suit." The foregoing section amended sect. 2 of the act of 1880 in manner following : The words, " it shall be lawful to proceed," used in the act of 1880.°are stricken out, and in their place are inserted the words, "all proceedings to collect said debt shall be, first, to foreclose," etc. CHAP. V.] SEA GROVE BUILDING, ETC. ASSO. V. STOCKTON. 543 Whether the language quoted from the act of 1880 was merely de- claratory of the then existing law, or gave the creditor an option that he did not previously have, we are unable to say, but it is clear that that option has been taken away by the act of 1881, for its language is mandatory, — " all proceedings, etc., shall be, first, to foreclose the mortgage," etc. The second section of said act of 1881 reads as follows : " That if, after the foreclosure and sale of any mortgaged premises, the person who is entitled to the debt shall recover a judgment in a suit on said bond for auv balance of debt, such recovery shall open the foreclosure and sale of said premises, and the person against whom the judgment has been recovered may redeem the property by paying the full amount of money for which the decree was rendered, with interest, to be com- puted from the date of said decree, and all costs of proceedings on the bond : provided, that a suit for redemption is brought within six months after the entry of such judgment for the balance of the debt." This section amended the third section of the act of 1880 by striking out the words, "the owner of the property at the time of said fore- closure and sale," and inserting, in lieu thereof, " the person against whom the judgment has been recovered," thus securing to the judgment debtor, and depriving the owner of the premises, unless he be also the judgment debtor, the right of redemption. From the foregoing it will be seen that, under the law of New Jersey, to collect a debt secured by bond and mortgage, a creditor is compelled, first, to foreclose the mortgage and sell the mortgaged premises, and, then, if there be any deficiency, he may sue upon the bond, provided his suit be commenced within six months from date of sale of the mort- gaged premises, and if he recover judgment in such suit for the balance of the debt, the judgment creditor may redeem the property, provided his suit for redemption is brought within six months after the entry of the judgment for the balance of the debt. The facts of the case under consideration are, briefly, as follows : The defendant, on Feb. 19, 1883, gave to the plaintiff a bond and mortgage for $600, secured by lien upon certain real estate owned by him in the State of New Jersey, and at the same time, as collateral security, transferred to the plaintiff his stock in the plaintiff association. On Feb. 9, 1884, the defendant conveyed the mortgaged premises, sub- ject to the mortgage, to Ellwood Parsons, to whom he also, at the same time, transferred, on the books of the plaintiff association, his stock in said association. On Oct. 6, 1885, Ellwood Parsons and wife conveyed the same premises, subject to said mortgage, to Martha Mcllvaine, and she, on April 23, 1886, conveyed it to Levi Haas. A bill to foreclose said mortgage was filed Aug. 26, 1887, and final decree made July 22, 1889. On Sept. 14, 1889, the sheriff sold the mortgaged premises under the foreclosure proceedings, and sold at the same time the stock in the plaintiff association, pledged by defendant as collateral security, and the plaintiff purchased both premises and stock. This sale was 544 SEA GROVE BUILDING, ETC. ASSO. V. STOCKTON. [CHAP. V. confirmed on Sept. 25, 1889, and on Jan. 1, 1890, plaintiff sold said premises. On April 14, 1890, the plaintiff entered judgment upon the bond accompanying said mortgage, in the Court of Common Pleas of Chester County, Pennsylvania, and on the same day issued a writ of fieri facias upon the same. On April 21, 1890, on motion of defend- ant, a rule was granted upon the plaintiff to show cause why the judg- ment should not be opened, and he let into a defence, which rule was, on July 14, 1890, made absolute. On Aug. 18, 1890, by agreement of counsel, the case was considered at issue with the same effect as though a writ of scire facias had issued, and the proper pleas been pleaded. No proceedings were ever had on the bond in the State of New Jersey. These facts raise the question whether, under the above cited acts of assembly of New Jersey, the plaintiff can recover in the suit brought upon said bond in this county ; and the answer to this question must depend upon whether the acts referred to are acts of limitation, or are incidents of the contract and affect the rights of the parties. If the former, the lex fori must govern ; if the latter, the lex loci contractus. Statutes of limitation, it is well settled, form no part of the contract itself; they affect only the remedy in case of suit. A statute of limi- tation has been defined to be "a statute assigning a certain time, after which rights cannot be enforced by action," and Green, J., in Tenant v. Tenant, 110 Pa. 485, has thus described its effect or operation : "The State simply declares that, if her process is used, it must be done within certain fixed periods of time, and if not so used, the defendant ma}-, at his option, plead the laches of the plaintiff, and receive the benefit of the prohibition. It is, in substance, a prohibition on the use of pro- cess, after a definite period, and this, of course, makes it a matter of remed}' only," for " the obligation of the contract is not terminated or defeated." Now, the act of 1881 does limit the mortgagee's right of action upon his bond to "six months from the date of the sale of said mortgaged premises ; " it also limits the judgment debtor's right to sue for re- demption to " six months after the entry of such judgment for the balance of the debt." Both of these provisions have all the essentials of a statute of limi- tation, and if the act contained either or both, and nothing more, we could have no hesitation in pronouncing it a statute of limitations, and affecting, consequently, the remed}' only. We must, however, consider and interpret the act as a whole, and endeavor to ascertain its intent or object, and, in this enlarged view, it is apparent that its object is not merely to limit the time within which either suit upon the bond or for redemption may be brought (they are but incidents), but to prescribe, and in a mandatory manner, how debts secured by bond and mortgage shall be collected ; and it is well settled that, when a particular mode of procedure is prescribed, all others are denied or excluded. It is equally well settled, that all contracts are CHAP. V.] SEA GROVE BUILDING, ETC., ASSO. V. STOCKTON. 545 presumed to have been made with reference to existing laws, which, where applicable, form a part of the contract itself. This mortgage contract was, therefore, made under and with refer- ence to the existing laws of New Jersey, which were an incident of the contract and an implied part of the agreement of the parties, and, in compliance with the requirements of these laws, the mortgagee, in case of default, was bound to proceed, first, to foreclose the mortgage, and had he, in violation of his implied agreement, sued first upon his bond, either in New Jersey or Pennsylvania, the statute of 1881 would have been a full and complete defence, and prevented recovery, not because it contained limitations of certain actions, but because it was in viola- tion of the contract, viz. : that the mortgagee should proceed, first, to foreclose the mortgage, and if he subsequently proceeded on the bond, to collect any deficiency, that the judgment debtor should have six months, from entry of judgment for such deficiency, within which to bring his suit for redemption, of which he would otherwise be deprived, thus affecting not merely the remedy, but the rights of the parties. The act of 1881 is not an act of limitation, but an act prescribing and regu- lating the mode of procedure on all mortgage contracts entered in the State of New Jersey. It not only compels the mortgagee to first fore- close the mortgage, and, if he desires to proceed on the bond for any deficiency, to commence his suit within six months from the date of the sale of the mortgaged premises, but it also, in case judgment be recov- ered on the bond, opens the foreclosure and sale of the premises, and allows the judgment creditor six months, from the entry of such judg- ment, within which to bring his suit for redemption. While the act does not say the debt is extinguished, unless the mort- gagee bring the suit on the bond within the time specified, yet such is clearly the implied and logical conclusion ; for, if not extinguished, and suit could be afterwards brought, the foreclosure and sale would not be opened ; the judgment creditor would be deprived of his right of re- demption, and the six months' limitation would be without meaning and useless. It is furthermore apparent, from the title of the act itself, that it is not one of limitations, for it declares it to be "An act concerning pro- ceedings on bonds and mortgages given for the same indebtedness, and the foreclosure of the mortgaged premises thereunder." We are, therefore, of the opinion that the act of assembly of New Jersey, of March 28, 1881, was an incident of the contract, affecting not merely the remedy under, but the rights of the parties to, the con- tract, and that, by the failure of the plaintiff to proceed on his bond wibhin six months from the date of the sale of the mortgaged premises, the debt is extinguished, and he cannot recover in this action. The defendant's points are affirmed, and judgment must be entered for the defendant non obstante veredicto, upon payment of the verdict fee. Judgment for deft ndant, non obstante veredicto. Plaintiff ap- pealed. 35 546 HAMIDA V. BENAIAD. [CHAP. V. Per Curiam. This case has been so well discussed by the learned judge of the court below, that we affirm the judgment, for the reasons given by him. HAMIDA v. BENAIAD. Civil Tribunal of the Seine. 1885. [Reported 13 Clunet, 203.] The Tribunal. This action having for its object the dissolution of a partnership and the distribution of the assets, the prescription which applies is the prescription liberatoire, which according to the law of France runs only in thirty years (by the terms of Art. 2262 of the Civil Code) when it is invoked in a mixed action like this. Admit- ting that the prescription liberatoire is governed by the law of the debtor's domicile, at the time of bringing the action, in this case the prescription of Art. 2262 began to run for the benefit of Mahmoud Benaiiad onby from the time when he became French bj r naturalization, Sept. 13, 1852; the prescription was interrupted by this action, brought Oct. 21, 1880. In the interval less than thirty years elapsed, and the time required by the French law has not run. The defendants, to succeed in their plea, must prove that before Mahmoud's naturalization, the prescription had already begun to run for his benefit by virtue of the law of his country. It is for him that alleges this to prove it, questions of foreign law being, for French courts, questions of fact ; and in this respect they do not prove their plea. The starting of the prescription at a date prior to Sept. 13, 1852, not being proved, prescription cannot be allowed. 1 1 Five rules have been suggested by foreign jurists as governing the application of the laws of prescription. 1. That prescription is governed by the law of the place where the obligation came into existence. Cauhaperou v. Compaguies des Chemins de fer (Bordeaux, 27 Apr. 1891), 19 Clunet, 1004; Harvey v. Engelbert (Bremen, 5 Mar. 1877), 5 Clunet, 627; Blankezteju v. Prokuratorza (Senate of Warsaw, 6 Dec. 1873), 1 Clunet, 333. 2. That it is governed by the law of the debtor's domicile, Merlin Rep. Prescr. Sec. 1, § 3, VII ; Xoto v. Pacini (Seine, 11 Dec. 1893), 21 Clunet, 145 ; Anon. (Holland, 1874), 1 Clunet, 141. 3. That it is governed by the law of the creditor's domicile. 4. That it is governed by the law of the place of performance of the obliga- tion. These rules do not seem to be generally held by any court. 5. That it is governed by the law of the forum. Wehrle v. Letwinoff (Seine, 28 Nov. 1891), 19 Clunet, 712 ; X. v. de Jellinck (Brussels, 4 Feb. 1893), 20 Clunet, 942. —Ed. CHAP. V.] HOADLEY V. NORTHERN TRANSPORTATION CO. 547 HOADLEY v. NORTHERN TRANSPORTATION CO. Supreme Judicial Court of Massachusetts. 1874. [Reported 115 Massachusetts, 304.] Colt, J. 1 The plaintiff seeks to recover in tort against the defendant as a common carrier for the loss of a steam-engine which it had under- taken to transport from Chicago, Illinois, and deliver to him at Law- rence in this State. The engine was destroyed at Chicago in the great tire of 1871, and one question at the trial was, whether by the terms of the contract of transportation the defendant was liable for this loss. The plaintiff put in the bill of lading received by his agent at Chicago of the defendant at the time the property was delivered for transporta- tion. It is in the usual form, and the terms and conditions are ex- pressed in the body of the paper in a way not calculated to escape attention. In one clause it exempts the defendant from all liability for loss or damage by fire ; in another from all liability " for loss or damage on any article or property whatever by fire while in transit or while in depots or warehouses or places of transshipment," and further provides that the delivery of the bill of lading shall be conclusive evi- dence of assent to its terms. It was assumed by both parties as now settled that a common car- rier may by special contract avoid or limit his liability at common law as an insurer of property intrusted to him against loss or damage by fire occurring without his own fault. Such is the declared law of this Commonwealth, and the Illinois cases produced at the trial assume that the same rule prevails there. An express contract, once established, is in both States effectual to limit the carrier's liability. But the plain- tiff contended that by the law of Illinois, as declared in the courts of that State, the mere receipt, without objection, of a bill of lading which limits the carrier's common law liabilit}' for loss by fire, would not raise a presumption that its terms were assented to, but such assent, if relied on, must be shown by other and additional evidence. The jury have found this to be the law of that State, under instructions not objected to, and we are not required to say whether there was sufficient evidence to warrant the finding. Adams Express Company v. Ilaynes, 42 111.89; American Express Company v. Seiner, 55 111. 140, 150; Illinois Central Railroad v. Frankenberg, 54 111. 88, 98. The court ruled that this law of Illinois must govern the case, and that under it 'he jury could not find that the mere receipt of the bill of lading would be evidence of assent to its terms. The law of this Commonwealth differs from the law of Illinois as thus found. In Grace v. Adams, 100 Mass. 505, decided by this court on in agreed statement of facts, it was held that a bill of lading or ship- ping receipt, taken by a consignor without dissent at the time of the delivery of the property for transportation, by the terms of which the carrier stipulates against such liability, would exempt the carrier when 1 Purl of the opinion only is given. — Ed. •548 HOADLEY V. NORTHERN TRANSPORTATION CO. [CHAP. V. the loss was not caused by his own negligence, on the ground tbat such acceptance would authorize him to infer assent, and amount to evidence of the contract between the parties. The defendant contends that the case is to be tried by the law of this Commonwealth. It is a o-eneral rule that personal contracts must have the same inter- pretation and binding force in all countries which they have in the place where made. The contract is presumed to have been entered into with reference to the law of that place. If formalities and solemni- ties are there required to give validity to it, the requirement must be shown to have been observed. But the law of the place where the action is brought, by the same general rule, regulates the remedy and all the incidents of the remedy upon it. The law of the former place determines the right ; the law of the latter controls the admission of evidence and prescribes the modes of proof by which the terms of the contract are made known to the court, as well as the form of the action by which it is enforced. Thus in a suit in Connecticut against the in- dorser on a note made and indorsed in New York, it was held that parol evidence of a special agreement different from that implied by law would be received in defence, although by the law of the latter State no agreement different from that which the law implies from a blank indorsement could be proved by parol. Downer v. Chesebrough, 36 Conn. 39. And upon the same principle it has been held that a contract valid by the laws of the place where it is made, although not in writing, will not be enforced in the courts of a country where the statute of frauds prevails unless it is put in writing as required. Leroux v. Brown, 12 C. B. 801. So assumpsit was held to lie in New York on an undertaking in Wisconsin contained in a writing having a scrawl and no seal affixed to the defendant's name, although in the latter State it had in pleadings and in evidence the effect of a seal. Le Roy v. Beard, 8 How. 451. The statute of limitations for the same reasons affects only the remedy, and has no extra-territorial force. It is not always indeed easy to determine whether the rule of law sought to be applied touches the validity of the contract or only the remedy upon it. In the opinion of the court, the rule of law laid down in Illinois and here relied on by the plaintiff affects the remedy only, and ought not to control the courts of this Commonwealth. The nature and validity of the special contract set up is the same in both States. It is only a difference in the mode of proof. A presumption of fact in one State is held legally sufficient to prove assent to the special con- tract relied on to support the defence. In the other State it is held not to be sufficient. It is as if proof of the contract depended upon the testimony of a witness competent in one place and incompetent in the other. The instructions given at the trial upon this point did not conform to the view of the law above stated, in which, upon more full consideration, we all concur. Exceptions sustained. 1 i Ace. Johnson v. C. & N. W. Ry., 91 la. 248, 59 N. W. 6$. Contra, Teuconi v. Terzaghi (Turin Caas. 7 July, 1887), 15 Clunet, 426. Lord Brougham in Bain v. CHAP. V.] PECK V. MAYO. 549 PECK v. MAYO. Supreme Court, Vermont. 1842. [Reported 14 Vermont, 33] Redfield. J. 1 This action is upon a promissory note, made in Mon- treal, where the legal rate of interest is six per cent, payable at the M. & F.'s bank, in the city of Albany, where the legal rate of interest is seven per cent, and indorsed by the defendants in this State, where the legal rate of interest is six per cent. This action being against the defendants, as indorsers. the only question is, what rate of interest are they liable for? The note was payable at a day certain, but no interest stipulated in the contract. The interest claimed is for damages in not paving the money when due. The"first question naturally arising in this case is, what rate of inter- est, bv wav of damages, are the signers liable for? There are fewer decisions to be found in the books, bearing directly upon this subject, than one would naturally have expected. It is an elementary principle, upon this subject, that all the incidents pertaining to the validity and construction, and especially to the discharge, performance, or satisfaction of contracts, and the rule of damages for a failure to perform such con- tract, will be governed by the lex loci contractus. This term, as is well remarked by Mr. Justice Story, in his Conflict of Laws, 248, may have a double meaning or aspect ; and that it may indifferently indicate the place where the contract is actually made, or that where it is vir- tually made, according to the intent of the parties, that is, the place of performance. The general rule now is, I apprehend, that the latter is the governing law of the contract. Hence the elementary principle undoubtedly is that the rate of interest, whether stipulated in the con- tract or given by way of damages for the non-performance, is the in- terest of the place of payment. We will next examine whether any positive rule of law has been established contravening this principle. 2 Kent Com. 460, 461. Chan- cellor Kent expressly declares that this elementary principle is now the "received doctrine at Westminster Hall," and cites Thompson v. Whitehaven, &c. Ry., 3 H. L. C. 1, 19, said : "The law of evidence is the lex fori which governs the courts. Whether a witness is competent or not ; whether a certain matter requires to be proved by writing or not ; whether certain evidence proves a cer- tain fact or not : This is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it." So if a stamp is required for admitting any document in evidence, even a foreign document must be stamped before it will be admitted ; while a document valid but in admissible, under this rule, where made, may be admitted in another State not requir- ing a stamp. Bristow v. Sequeville, 5 Ex. 275 ; Fant v. Miller, 17 Grat. 47 ; Murdock v. Roebuck, 1 Juta (Cape Colony), 1 ; Dearsley v. Rennels (Ghent, 7 Dec. 1876), 5 Clunet, 509. — Ed. 1 Part of the opinion only is given. — Ed. 550 PECK V. MAYO. [CHAP. V. Powles, 2 Simons' R. 194 (2 Cond. Ch, R. 378). This case does not necessarily decide this point, but the opinion of the Vice Chancellor expressly recognizes the rule, that, although the rate of interest stipu- lated is above the English interest, still the contract will not be usurious, unless it appear to be a contract made in England and there to be performed. The case of Harvey v. Archbold, 1 Ryan & Moody, 184 (21 Eng. C. L. 729), recognizes more expressly the same doctrine. The case of Depau v. Humphreys, 8 Martin, 1, expressly decides, that a contract made in one country, to be performed in another, where the rate of interest is higher than at the place of entering into the contract, it may stipulate the higher rate of interest. Mr. Justice Story recog- nizes the elementary rule, above alluded to, as the settled law. Con- flict of Laws, 243, 246. Similar language is adopted by Mr. Justice Thompson, Boyce v. Edwards, 4 Peters' R. Ill, and by Mr. Chief Justice Taney, in Andrews v. Pond, 13 Peters, 65, and by Chancellor Walworth, in Hosford v. Nichols, 1 Paige, 220. Much the same is said by the court in the case of the Bank of the U. S. v. Daniel, 12 Peters, 32. In man}- of these cases the question alluded to was not directly before the court, but, by all these eminent jurists, it seems to have been considered as one of the long settled principles of the law of contract. The same rule of damages was, in the case of Ekins v. the East India Company, 1 P. Wins. 395, applied to the tortious conversion of a ship in Calcutta, the court making the company liable for the value of the ship, at the time of conversion, and the India rate of interest for the delay of the payment of the money- In this case the interest allowed was greater than the English interest. When the contract is entered into in one country, to be performed in another, having established a lower rate of interest than the former, and the contract stipulates interest generally, it has always been held that the rate of interest recoverable was that of the place of perform- ance only. It is expressly so decided in Robinson v. Bland, 2 Bur- row, 1077 ; Fanning v. Consequa, 17 Johns. 511 ; Schofield v. Day, 20 Johns. R. 102. From all which I consider the following rules, in regard to interest on contracts, made in one country to be executed in another, to be well settled : 1. If a contract be entered into in one place to be performed in another, and the rate of interest differ in the two countries, the par- ties may stipulate for the rate of interest of either country, and thus by their own express contract, determine with reference to the law of which country that incident of the contract shall be decided. 2. If the contract, so entered into, stipulate for interest generally, it shall be the rate of interest of the place of payment, unless it appear the par- ties intended to contract with reference to the law of the other place. 3. If the contract be so entered into, for money, payable at a place on a day certain, and no interest be stipulated, and payment be delayed, interest, by way of damages, shall be allowed according to the law of the place of payment, where the money may be supposed to have been CHAP. V.] AYER V. TILDEN. 551 required b}' the creditor for use, and where he might be supposed to have borrowed rnone}' to supply the deficiency thus occurring, and to have paid the rate of interest of that country. This is expressly recog- nized as the settled rule of law, in regard to the acceptor of a bill, who stands in the place of the maker of these notes. 3 Kent's Com. 11 6. 1 AYER v. TILDEN. Supreme Judicial Court of Massachusetts. 1860. [Reported 15 Gray, 178.] Action of contract upon this promissory note, made and indorsed by the defendants: "$670.81. New Lebanon, 20th June, 1857. Six months after date we promise to pay to the order of ourselves six hundred and seventy dollars and eight3 - -one cents, value received, at Bank of America, N. Y. Tilden & Co." The parties stated the following case, upon which the Superior Court in Middlesex gave judgment for the defendants, and the plaintiffs appealed. 2 Hoar, J. The plaintiffs are entitled to recover, according to the agreement of parties, the principal of the note, with interest at such a rate as the law will allow. That rate will be six per cent from the maturity of the note. The interest is not a sum due by the contract, for by the contract no interest was payable, and is not therefore affected by the law of the place of contract. It is given as damages for the breach of contract, and must follow the rule in force within the jurisdiction where the judgment is recovered. Grimshaw v. Bender, 6 Mass. 157 ; Eaton v. Melius, 7 Gray, 566 ; Barringer v. King, 5 Gra}', 12. The contrary rule has been held to be applicable where there was an express or implied agreement to pay interest. Winthrop v. Carleton, 12 Mass. 4; Von Hemert v. Porter, 11 Met. 220; Lanusse v. Barker, 3 Wheat. 147. Perhaps it would be difficult to support the decision in Winthrop v. Carleton upon an}' sound principle; because the court in that case held that interest could only be computed from the date of the writ, thus clearly showing that it was not considered as due b}' the contract, and yet adopted the rate of interest allowed at the place of the contract. But the error would seem to be in not treating money, paid at the implied request of another, as entitled to draw interest from the time of payment. 1 Arc Gibbs v. Fremont, 9 Ex. 25; Ex parte Heidelbaek, 2 Low. 526; Ballister v. Hamilton, '■'> La. Ann. 401; Fanning v. Consequa, 17 Johns. 511 ; Raymond v. Messier (French Cass. 9 June, 1880), 7 Clunet, 894.— Ed. 2 Only so much of the case as deals with tlie rate of interest is given Ed. 552 COMMERCIAL NATIONAL BANK V. DAVIDSON. [CHAP. V. An objection to adopting the rule of the rate of interest in the juris- diction where the action is brought as the measure of damages may be worth} 7 of notice, that this rule would allow the creditor to wait until he could find his debtor or his property within a jurisdiction where a much higher rate of interest was allowed than at the place of the con- tract. But a debtor could always avoid this danger by performing his contract ; and the same difficulty exists in relation to the actions of trover and replevin. If such a case should arise, it might with more reason be argued that the damages should not be allowed to exceed those which would have been recovered in the State where the contract was made and to be performed. 1 COMMERCIAL NATIONAL BANK v. DAVIDSON. Supreme Court of Oregon. 1889. [Reported 18 Oregon, 57.] Thayer, C. J. 2 ... It is stipulated in the note to the effect that if it is not paid at maturity the makers will pa}' ten per cent additional as costs of collection. ... It is my opinion that a clause in a promissory note, in the form of the stipulation in question, is not valid, and should not be enforced. . . . Counsel for the respondent insists that the stipulation to pay the additional sum contained in the note in suit was valid and binding in the Territory where the note was executed, and that therefore it should be upheld in this State. As a general rule, the law of the place whei*e contracts mereby personal are made, governs as to their nature, obli- gation, and construction. But I do not think that rule applies to an agreement, the obligation of which does not arise until a remedy is sought upon the contract, to which it is only auxiliary. In regard to such agreements, the law of the place where they are attempted to be 1 See Kopelke v. Kopelke, 112 Ind. 435. In Meyer v. Estes, 164 Mass. 457, 465, Field, C. J., said : " In determining the measure of damages the first question is whether the contract is to be governed by the law of Massachusetts or by the law of the kingdom of Saxony. We think that it is to be governed by the law of Massachusetts. The contract was signed in Massachusetts and sent to the plaintiff at Leipzig, Saxony ; it did not become a contract until the plaintiff accepted it and notified the defendants of such acceptance, which he did by telegram sent to them at Boston. Lewis v. Browning, 130 Mass. 173 ; Piue v. Smith, 11 Gray, 38 ; Hill v. Chase, 143 Mass. 129. The contract relates to what is to be done by the defendants in the United States of America ; the defendants are described as 'of Boston, Mass., U. S. A.,' and the date of the contract is Boston. We think that it must be regarded as a contract to be performed in Massachusetts, and that the law of Massachusetts, which is also the law of the forum, must determine the damages to be recovered in the action." — Ed. 8 Only so much of the opinion as deals with the question of costs is given. — Ed. CHAP. Y.] COMMERCIAL NATIONAL BANK V. DAVIDSON. 553 enforced, I should suppose, would prevail. This agreement was to pay the additional percentage as costs for collection of the note, and if the courts where the note was executed would have enforced the agree- ment, it does not follow that the courts of another jurisdiction are bound to do so. The effect of the agreement was to provide for an increase of costs, which are only incidental to the judgment, and the allowance of which must necessarily depend upon the law of the forum. A stipulation in a note made in Utah Territory, providing that in an action on the note the plaintiff, in case of a recovery, should be entitled to double costs, might be considered valid under the laws of that Ter- ritory, and enforceable in its courts ; but that certainly would not ren- der it incumbent upon the courts of this State, in an action upon such note, to award double costs. 1 l Ace. Security Co. v. Eyer, 36 Neb. 507, 54 N. W. 838. — Ed. SELECTION OF CASES ON THE CONFLICT OF LAWS BY JOSEPH HENRY BEALE, Jr. PROFESSOR OF LAW IN HARVARD UNIVERSITY Vol. II. THE CREATION OF RIGHTS CAM UK I DOE HARVARD UNIVERSITY IMMss Copyright, 1901, By Joseph Henry Beale, Je. Mnibcrsttg Press: John Wilson and Son, Cambridge, U.S.A. TABLE OF CONTEXTS Table of Cases Page v PART TIL THE CREATION OF RIGHTS. CHAPTER VI. PERSONAL RIGHTS. Section I. General Principles 1 Section II. Capacity 8 Section III. Marriage 41 Section IV. Legitimacy and Adoption 107 CHAPTER VII. RIGHTS OF PROPERTY. Section I. The Nature of Property 143 Section II. Immovables 150 Section III. Movables 154 Section IV. Trusts 195 Section V. Marital Property 210 CHAPTER VIII. INHERITANCE. Section I. Intestate Succession 253 Section II. Testamentary Succession 2G1 Section III. Execution <>i Power 297 CHAPTER IX. Obligations ex Delicto 30S IV TABLE OF CONTENT?. CHAPTER X. OBLIGATIONS EX CONTRACTU. Page Section I. Place of Contracting 348 Section II. Formalities 363 Section III. Obligation 375 Section IV. Interpretation 431 Section V. Effect 445 Section VI. Assignment 462 Section VII. Performance 468 Section VIII. Discharge 486 Section IX. Special Forms of Obligation: (A) Mercantile Instruments 511 (B) Obligations of Carriers 531 CO Obligations Quasi ex Contractu 548 TABLE OF CASES. [This table contains all cases in the text, and all the American, British and Colonial cases cited by the editor in his notes. Cases in the text are printed in small capitals.] Page A. v. C. 36 Abdt, Lee v. 462 Abt u. Bank 531 Acker o. Priest 200 Adams v. Farley 286 Adkisson, Dayton v. 124 Afflick, In re 255 Aganoor's Trusts, In re 258 Akers v. Demond 416 Alabama G. S. R. R. v. Carroll 328 Alcock v. Smith 514 Alexander v. Pennsylvania Co. 325 Alexandria A. & F. S. R. R. v. John- son 355 Alferitz v. Ingalls 159 Allshouse v. Ramsay 369 Alves v. Hodges 364 American Ex. Co., Brockway v. 539 American Freehold L. & M. Co. v. Jefferson 422 American Freehold Mtg. Co. v. Sewell 419 American Mtg. Co., Jackson v. Underwood v. Ames v. McCamber Ames Iron Works v. Warren Anderson v. Wheeler Andrews v. Pond Andruss v. People's B. & L. Assoc. Anonymous (1 Seuff. Archiv, 57) (42 Seuff. Archiv, 303) (21 Clunet, 592) Anthony, Crenshaw v. Apple, Estate of Arbuckli: v. Reaume Archer v. Ins. Co. Arkansas Nat. Bank, Masurv v. Armitage v. Spahn AbROTJABD, Sam ill V. Asheville & S. R. R., Bridger v. Ashland Bank, Junction R. R. v. Astor v. Price Atherton, Roberts v. Atkinson v. Staigg Atkinson, Staigg v. Atlanta N. B. & L. Assoc, Meroney v. 414 Atlantic Phosphate Co. v. Ely 356 414 414 158 166 493 409 414 250 103 141 159 255 404 401 181, 467 159 251 332 II I 419 498 •jsi; 281! Page Attorney General, Brinkley v. 43 Scott v. 93 Atwater v. Walker 419 Bartsch v. 477 August, The 539 Augusta, The 341 Aultman v. Holder 350 Atmar v. Sheldon 518 Ayme, Badin v. 189 Atres, Bltthe v. 132 B. Babcock, N. P. R. R. v. 335 Badin v. Heirs of Ayme 189 Baldwin v. Gray 447 Baldwin v. Hale 493 Ballard v. Winter 159 Bank v. Hemingray 512 Abt v. 531 Benton v. 512 Hyatt v. 512 Loftus v. 231 Savings Bank v. 512 Sturdivant v. 419 Bank of Commerce, Douglas v. 522 Bank of 1 Orange v. Colby 528 Barber, Powcatuck Nat. Bank v. 528 Baking v. Inland Revenue Commis- sioners 348 Barker v. Stacy 159 Crandell v. 286 Barksdale, Kentucky Com. Bank v. 522 527 Barnes, Howenstein v. 612 Barnum v. Baknum 127 Barret v. Dodge 355 Barrett v. Kelley 170 Barrows v. Downs 452 Barter v. Wheeler 547 Bartlett, Fear v. 507 Barton, Waters v. 158 Bartsch v. Atwater 477 Bascmn r. Zcdiker Bassford, Kentucky v. 401 Batcheller, I'nu.vix Nat. Bank v. 193 Bates, Shattuck r. |.M VI TABLE OF CASES. Baum v. Birchall Baxter Nat. Bank v. Talbot Beall v. Williamson Beebe, 111. Cent. R. R. v. Beecham v. Portsmouth Bridge Beers, Cooper v. Belgenland, The Bell v. James v. Packard Bell, Carpenter v. Bell, Houghtaling v. Benbow v. Moore Benners v. Clemens Bennett, Whitten v. Benton, Cochran v. v. Bank Bernheim v. Raaz Berquier, Desesbats v. Besse v. Pellochoux Bethell, In re. Bethell v. Bethell Bibb, Havvley v. BlGELOW V. BURNHAM Birchall, Baum v. Blackwell v. Webster Blanc hard v. Russell Bland, Robinson v. Blanzy Coal Co. v. Davillier Blatchford v. Blatchford Bliss v. Braihard Crum v. Blodgett v. Durgin Blythe r. Ayres Boggs, Frazier v. Bonaffe, Dord v. Bonati v. Welsch Bond v. Cdmmings Bonnar, D'Hervas v. Boothby v. Plaisted Borden, Rhodes v. Borland, Phelps v. Boston & P. Lumber Co., Tillinghast i Boulard, Dupre v. Bowen v. Newell Bowery Sav. Bank, Schluter v. Bowles v. Field Brabston v. Gibson Brackett v. Norton Bradlaugh v. De Rin Bradshaw i\ Newman Rockwell v. Brainard, Bliss v. Brampton, R. v. Brayton, Millard v. Brazilian Submarine Tel. Co. Chatenay v. Breed, May v. Breitung, Estate of Breton v. Miles Brewer, Danner v. Bridger v. A. & S. R. R. Brien v. Marchildon Brigham's Appeal Brine v. Ins. Co. Brinkley v. A. G. Brintnall, Van Voorhis v. Page Page 17,25 Bristow v. Sequeville 364 405 Brockway v. Arner. Ex. Co. 539 159 Bronson v. St. Croix Lumber Co. 152 542 Brook v. Brook 59 328 Brook v. Vannest 514 255 Brown v. Brown 158 347 v. Freeland 414 401 v. Jones 528 17 Brown v. Nevitt 414 273 Brown, Leroux v. 369 369 Brown's Appeal 464 286 Bruyere, Pepin v. 273 479 BuGBEE, FELCH V. 489 323 Building & L. Ass., Rowland v. 355 25 Burcli, B. & L. Assoc, v. 414 512 Burgess, Kent v. 50 362 Burkam, Collins Iron Co. v. 430 269 Burke, Wolf v. 369 228 Burnett v. Pennsylvania R. R. 546 80 Burnett, Kendrick v. 345 , 347 441 BURNHAM, BlGELOW V. 423 394 Burton, Central Trust Co. v. 422 423 Burwell, Hornthal v. 159 17,25 Butler, Newmarket Bank v. 493 402 488 375 c. 530 216 C, A. v. 36 401 Cahalan v. Monroe 240 279 Callaway v. Doe 272 528 Cameron v. Watson 286 132 Pugh v. 350 273 Cammell v. Sewell 154 362 Campbell v. Coon 152 243 Miller v. 464 239 Canada Southern Ry. v. Gebhard 496 32 Canterbury v. Wyburn 273 356 Canty, Mumford v. 159 493 Carnegie v. Morrison 394 493 Carnes, Davenport v. 239 y.358 Carpenter v. Bell 273 98 Carriage Co., Amusement Co. v. 176 528 Carroll, A. G. S. R. R. v. 328 240 Carson, Wilson v. 159 17 Carter v. Goode 315 512 Carter r. Mutual L. Ins. Co. 187 548 Case v. Dodge 17 514 Cassin, Touro v. 401 400 Castleman v. Jeffries 231 286 Castro c. lilies 228 401 Caulfield v. Sullivan 286 50 Central Imp. Co. v. Crumlish 548 408 Central New Eng. & Western ■> R. R., Higgins v. 320 453 Central Trust Co. v. Burton 422 488 Chaize, De Lizardi v. 34 353 Chamberlain r. Chamberlain 269 282 239 Chamberlin, Glidden v. 512 152 Chase v. Henry 49(5 332 Chase, Hill v. 361 239 Chatenay v. Brazilian S. T. Co. 453 . 307 Chew v. Head 522 154 Chicago & E. I. R. R. v. Rouse 328 43 Chicago, M & S. P. Ry. v. Hazel 544 93 i Davis r. 539 TABLE OF CASES. VII v. Works Chicago, M. & S. P. Ry., Njua » Childs, Tarbox v. Choisi, Lhermite v. Church, Moore r. Churchill, Despard r. Citizens' Bank, Warner v. Claflin v. Meyer Clark v. Graham Kerslake v. Proctor v. Clarke, Appeal of Clegg v. Levy Clemens, Bexners v. Clements, Assur. Soc Cleveland Machine Lang Clough, Emery v. Coad v. Home Cattle Co, Cochran v. Benton Cochrane, Kennedy v. Codman v. Krell Cohen, Ins. Co. v. Colby, Bank of Orange v. S. v. Collins Iron Co. v. Burkam Colonial Bank, Williams v. Columbia Bank v. Walker Com. v. Graham Com. v. Lane i lorn , Kinney v. Com. Mut. Fire Ins. Co. v. Wm. Knabe Mfg. Co. COMPANHIA DE MOAGENS, LONDON Assurance v. Comstock v. Smith Condry, Smith v. Connolly v. Woolrich Cooke's Trusts, In re Coon, Campbell v. Coons, Kendall v. Nat v. Cooper v. Beers Cooper v. Cooper Coote v. Jecks Copelin. Warren v. < !orbett v. Littlefield Cordell, Mall v. Cutting v. De Sartiges COUTEAUX V. VARTHALITI Cox v. U. S. Cox, Hewitt v. Wilson v. Craijr v. Williams Thorp v. 522 Crandell v. Barker Crasstown, Lord, v. Johnston Credit Lyonnais, Jacobs v. Creditors, Saul v. Crenshaw v. Anthony Crispin, Doglioni v. Cromwell v. Ins. Co. Crum v. Bliss Trumlish v. Central Imp. Co. Culling v. Culling CUMMING V. Cl'MMIVG Cummings, Bond '•• Page 328 476 105 152 144 522 356 150 455 286 286 363 479 352 Page Curlier, De Nicols v. 210,216 Currie, Rothschild v. y 22 Curtis v. Delaware, L. & W. R. R. u44 D. 319, Dacosta v. Davis Dalrymple v. Dalrymple Dammert v. Osburu Danelli v. Danelli Danner v. Brewer Dart, Walsh v. Davenport v. Carnes Davidow v. Pa. R. R. 176 Davillier. Blanzy Coal Co. v. 168 Davis v. C. M. & S. P. Ry. 414 v. Davis 25 v. Ins. Co. 400 Davis v. N. Y. & N. E. R. R. 433 Davis v. Zimmerman 508 Dacosa v. 528 Kelly v. 356 Sharp v. 430 Dawson, Wick v. 464 Dayton v. Adkisson 24G Dean, Tliornton v. 59 De Barros, Sottomayor v. 85 De Bauffremont v. De Bauffre 93 MONT De Fogassieras v. Duport 352 De Geronino, Siebberas v. De Giverville, Richardson v. 438 De Ham v. Mex. Nat. Ry. 479 De la Vergne R. M. Co. v. R. R. 345 Delaware, L. & W. R. R., Curtis v. 80 De Lizardi v. Chaize 11 Delop v. Windsor 152 Demond, Akehs v. 246 De Nicoi.s v. Curlier 210, 269 Denny v. Williams 255 Depas v. Mayo 9 De Kin, Bradlaugh v. 158 De Ruyter, Rindskopf v. 512 De Sartiges, Cotting v. 159 Desesbats v. Berquier 370 Despard v. Churchill 307 D'IIeuvas v. Bonnab 194 Dickinson v. Edwards 473 Dike v. Erie Ry. 255 Dodge, Barret v. 286 Case v. 159 Doe, Callaway V. 528 Doerle, Lewis v. 286 Doglioni v. Crispin 195 Donald v. Ihwitt 468 Donohoe v. Donohoe 220 Doolittle. King i\ 169 Dord o. Bonaffd 255 Doughty, Satterthwaite v. 358 Douglas v. Bank of Commerce 279 Pratt v. 648 Dousay, Mason v. 50 Dow v. Rowell lit Downs. Barrows o. 239 Drew v. Smitli 369 41 269 72 152 527 239 319 530 539 50 352 316 240 369 25 414 243 124 414 72 99 273 204 243 335 181 544 34 168 416 216 369 202 514 356 307 269 144 32 414 539 355 17 272 272 255 168 26 612 362 364 522 272 367 612 452 179 Vlll TABLE OF CASES. Dugan v. Lewis Dunbar, Gosline v. Duncan v. Lawson Dunnigan v. Stevens Duport, De Fogassieras v. Dupre v. Boulard Durbin, Townes v. Durgin, Blodgett v. Dustin, Skelton v. Dygert v. Vermont L. & T Co. E. Earl v. Godley Eastman, Gale v. Ebert, Golson v. Eddie v. Eddie Edwards, Dickinson v. Ehrt, Rotta v. Eldridge, Heaton v. Elliott, Thayer v. Ellsworth, Marsh v. Ely, Atlantic Phosphate Co. v. Emanuel v. White Emery v. Clough Enohin v. Wylie Ensly L. Co. v. Lewis Equitable Life Assurance ciety v. Clements Equitable Trust Co., Fowler v. Erie Ry., Dike v. Evans-Snyder-Buel Co. v. Bank Evansville Ice & C. S. Co. v. Winsor Everett v. Vandryes Exchange Bank, Hubbard v. Exposition Cotton Mills, R. R. v. Eyre v. Storer Eyre, Phillips v. Page Page 422 Pontes, Machado v. 311 158 Ford v. Ford 282 ,286 143 v. Ins. Co. 353 522 Fouke v. Fleming 158 273 Fourgeaud a. Santo Venia 35 98 Fowler v. Equitable Trust Co. 425 240 Fowler, Whipple v. 154 528 Fowler's Appeal 206 528 Frazier v. Boggs 273 414 Freeland, Brown v. 414 Freeman's Appeal 17 Freese, Grunwold v. 479 Freyer, Weinstein v. 176 Frierson v. Williams 25 80 Frierson v. Williams 240 430 Filler, Mason v. 239 362 Fuss v. Fuss 228 So- 136 414 529 369 394 168 356 512 168 269 179 352 425 639 159 294 514 369 542 273 308 539 419 364 496 286 507 489 269 139 152, 419 353 Fairchild, Pennsylvania Co. v. Falls v. Savings Co. Fant v. Miller Fareira v. Keevil Farley, Adams v. Fear v. Bartlett Felch v. Bugbee Fellows v. Miner Ferrand, Skottowe v. Fessenden v. Taft Ficklin, Fidelity Mut. L. Ass. v. Fidelity Mut. L. Ass. v. Ficklin Field, Bowles v. Findlay v. Hall Finlayson, Meares v. First Nat. Bank v. Nat. Broad- way Bank Graham v. First Nat. Bank, Post v. 25, 152 Fisher v. Otis 414 Flagg, Offutt v. 159 Fleming, Fouke >•- 158 353 17 355 430 207 479 Fletcher, Howard v. 507 G. G. v. S. G., Manager of Court Theatre v. G. A. Gray Co. v. Iron Works Co. Gaither, Gates v. Gale v. Eastman Galloway v. Standard Fire Ins. Co. Garlinghouse, U. S. v. Garrett, Rosenbaum v. Garrettson v. North Atchison Bank Gassett, Sherman v. Gates v. Gaither Gautreau, Reyher v. Hawtry, Johnson v. Gebhard, Canada So. Ry. v. Gibbs v. Sewastianoff v. Societe Industrielle Gibbs, Wood v. Gibson, Brabston v. Gidney v. Moore Oilman v. Stevens Glidden v. Chamberlin Glover v. U. S. Goddard v. Sawyer Godley, Earl ?>. Golson u. Ebert Goode, Carter v. Goodman v. Ry. Goodnow, Hyde v. Gorman, Healy v. Gosline v. Dunbar Gould, Shaw v. Govvan v. Gowan Graham v. First Nat. Bank Clark v. Graham, C. v. Lichtenberger v. Gray v. Holmes Gray, Baldwin v. Gray, Reid v. Green v. Van Buskirk Greene, Mut. Aid Assoc, v. Greenville Nat. Bank v. Evans- Snyder-Buel Co. Oreexwald v. Raster Greer v. Poole 259 33 179 151 430 352 9 286 358 430 151 193 25 496 528 486 512 512 228 477 512 152 152 80 362 315 335 352 474 158 107 286 479 150 59 240 132 447 240 160 434 159 504 441 TABLE OF CASES. IX Page Gregg, Phillips v. 43, 50 Stevens v. 512 Griffin, Van Storch v. 93 Grove, In re 120 Grunwald v. Freese 479 Guarantee T. & S. D. Co., Jenkins v. 282 Guepratte v. Young 17, 364 Guerard v. Guerard 286 Guibert, Lloyd v. 539 Guy, Shelby v. 158 H. Habersham, Jones v. Hairston v. Hairston Hale v. N. J. S. N. Co. Baldwin v. Hobson v. Hall v. Cordell Hall v. Pillow Findlay v. Maynard v. Hall, Waverly Nat. Bank v. Hallet, The Hamblin, Huse v. Hamlyn v. Talisker Distillery Handley v. Harris Harding, Phipps v. Harral v. Harral Harris, Handley v. Young v. Harrison v. Harrison v. Nixon Hastings v. Hopkinson Hawley i?. Bibb v. Hunt Haxtun, Sheldon v. Hazel v. C. M. & S. P. Ry. Healey v. Reed Healy v. Gorman Heaton v. Eldridge Heine v. Ins. Co. Hellmann's Will Hemingray, Bank v. Henry, Chase v. Hernandez, Succession of Hervey v. Locomotive Works Hess, Long v. Hewitt v. Cox Donald v. Hicks v. Ins. Co. Higgins v. Central N. E. & W. R. R. Hill t-. Chase Hill v. Pine River Bank v. Wright Lindsay v. Woodruff v. Hinrnan v. Parkis Hobson v. Hale Hodges, A Ives v. Holder, Aultman v. Holland v. Pack Holman v. Hopkins Holmes, Gray v. Holmes, Raymond v. 269 255 539 493 272 370 159 355 419 445 337 522 456 159 512 231 159 350 154 286 452 394 493 414 544 279 474 369 243 26 512 496 93 166 228 255 168 :;:,:; 320 361 17 455 430 400 240 272 864 350 315 27:; 182 522 Page Home Cattle Co., Coad v. 414 Hopkins, Holman v. 27o Hopkinson, Hastings v. 452 Hornthal v. Burwell 169 Houghtaling v. Bell 369 Howard v. Fletcher 507 Howe Machine Co., Webster v. 512 Howenstein n. Barnes 512 Hubbard v. Exchange Bank 369 Hudgins, Riddle r. 210 Huey, Appeal of 9 Huffman, Scheferling v. 220 Hufnagle, Swank v. 23, 151 Hunt v. Jones 367 Hunt v. Standart 522 Hawley v. 493 Hunt, Moultrie v. 261 Huse v. Hamblin 522 Hutchings, Smith o. 159 Hyatt v. Bank 512 Hyde v. Goodnow 352 Hyman v. Sclilenker 228 Hyslop, Maxwell v. 286 lilies, Castro v. 228 Illinois Central R. R. v. Beebe 542 Industrie, The 539 Ingalls, Alferitz v. 159 Inland Revenue Commissioners, Baring d. 348 Insdeth, Pierce v. 527 Ins. Co. v. Sawyer 353 Archer v. 401 Brine v. 154 Cromwell v. 353 Davis v. 352 Ford v. 353 Hicks v. 353 Mavro v. 648 Irwin's Appeal 273 Ivey v. LaJland 401 J. Jackson v. Amer. Mtg. Co. 414 Jackson v. Tiernan 407 Jackson Iron Co , Kobogum v. 80 Jacobs v. Credit Lyonnais 468 James, Bell v. 401 Jecks, Coote v. 158 Jefferson, Amer. F. L. & M. Co. v. 422 Jeffries, Castleman v. 231 Jenkins v. G. T. & S. D. Co. 2s-j Jennings v. Jennings 2S<; John A. Tolman Co. v. Reed 365 Johnson v. Gawtry 25 V. JollMMill Ml A. A. S F. S. R. R. v. :;:,.-. Pondeford v. '.>:', Johnston, l.onn Cranstown v. 196 Jones v. Il.ihcrsham 269 r. Taylor 15'J TABLE OF CASES. Jones, Brown v. Jones, Hunt v. Jones, McKee v. Junction R. R. v. Ashland Bank Junkermann, Shuenfeldt u. Page 528 367 405 414 362 K. Kaigler, Peterson v. Kanaga v. Taylor Kane, Van Reirnsdyk v. Raster, Greenwald v. Reenan v. Stimson Reevil, Fareira v. Keith v. Keith Keller v. Paine White v. Kelley, Barrett v. Kelly v. Davis Smith v. Kelly Axe Mfg. Co., Park Bros. & Co. v. Kendall v. Coons Kendrick v. Burnett 345, Kennedy v. Cochrane Kennedy, S. v. Kent v. Burgess Kentucky v. Bassford Kentucky Cora. Bank v. Barksdale Kerr, McGregor v. Kerslake v. Clark Ketcham, Thompson v. Key, Scott v. King v. Doolittle King v. Sarria King, South African Breweries v. Kinney v. C. RlTTERIDGE, LAWRENCE V. Knight Templars & M. Mut. Aid Assoc, v. Greene Knott, Lyon v. Knowles Loom Works v. Vacher Kobogum v, Jackson Iron Co. Rohne's Estate Rraemer v. Kraemer Rrell, Codnian v. Ryle, Thurman v. 159 159 362 504 159 496 272 166 286 179 25 124 369 246 347 400 98 50 401 522, 527 159 455 9 124 512 448 388 93 253 434 240 179 80 26 240 433 154 L. Lake, Oliver v. 455 Lalland, Ivey v. 401 Lamington, The 315 Lane, C. v. 85 Lane, Watson p. 350 Lang, Cleveland Machine Works v. 176 Langworthy v. Little 158 Lapham v. Olney 272 Larendon, Succession of 152 La Selle v. Woolery 246 Lawrence v. Ritteridge 253 Lawson, Duncan v. 143 Page Lebel v. Tucker 512 Lee v. Abdy 462 Mack v. 356 Lee, Strawberry Point Bank v. 512 U. S. Bank v. 159 Le Forest v. Tolman 315 Legg, In re 181 Leon, The 347 Leowolf, Stebbins v. 478 Leroux i-. Brown 369 Lett, Ex parte 26 Levy, Clegg v. 363 Lewis v. Doerle 272 Lewis's Estate 255 Lewis, Dugan v. 422 Ensly L. Co. v. 179 Ry. v. 332 Lewiston Mill Co., Wilson v. 372 Lhermite r. Choisi 105 Lichtenberger v. Graham 240 Lincoln v. Perry 286 Lindsay v. Hill 430 Lingen v. Lingen 128 Li Shee, Rep. v. 44 Little, Langworthy v. 158 Littlefield, Corbett v. 159 Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 531 Lloyd v. Guibert 539 Loftus v. Bank 231 London Assurance v. Companhia de moagens 438 Long v. Hess 228 Loring v. Neptune Ins. Co. 548 Louisiana Ins. Co., Shiff ?\ 441 Louisville & Nashville R. R. v. Whitlow 329 Louisville & N. R. R. v. Williams 335 Low, Wayne County Savings Bank v. 428 Lum Lin Ying, In re 43 Lynch v. Paraguay 255 Lyon v. Rnott 240 v. Ogilen 273 Wooley v. 522 M. McAllister v. Smith 414 McAtee, Smith v. 228 McCaraber, Ames v. 158 McCartney v. Osburn 286 McCollum v. Smith 145 McDeed v. McDeed 43 Macdonald v. Macdonald 269 McGhee, Morgan v. 80 McGoon v. Scales 152, 154 McGregor v. Rerr 159 Machado v. Fontes 311 Mack v. Lee 356 McKee v. Jones 405 McRenna, Succession of 239 Mackey v. Pettyjohn 158 McLean, Smith v. 159 McLennan v. McLennan 77 TABLE OF CASES. XI McLeod v. R. R. Madden, Russell v. Madrid, Phillips v. Mahler v. Schirmeb Main v. Messner Male v. Roberts Ma li. ac, Simon in v. Manager of Court Theatre v. (j. Manton v. Seiberling Marchildon, Brien v. Marsh v. Ellsworth Marshall, Nichols & Shepard Co. c Martel, Retnaud w. Martin, In re Martin, Melvin v. Marvin Safe Co. v. Norton Mason v. Dousay v. Fuller Maspons v. Mildred Masury u. Arkansas Nat. Bank Page 315 255 93 190 493 8 50 33 152 239 168 21 39 290 132 171 367 239 455 181, 467 17, 367 512 Morgan v. N. O. M. & T. R. R. Morris, Thatcher v. MOKKISON, CAI-.NEGIE V. Mott v. Rowland Moultrie v. Hunt Moint Hope Iron Co., Perry v. M ox ham, The Mullen v. Read Muniford v. Canty Muncie Nat, Bank, Smith v. Munro v. Munro Murchison, Matthews v. Mutual Life Ins. Co. t\ Cohen Carter v. Muus v. Muus N. Page 501 401 394 4 -J'." •_'t;i :::,7 345 431 159 414 124 17, 307 508 187 228 Ins. Co. 548 286 488 419 202 430 243 364 548 132 542 394 Matthews v. Murchison Stix r. Mavro v. Ins. Co. Maxwell v. Fly slop May v. Breed Maynard v. Hall Mayo, Depas v. Meares v. Finlayson Mechanics' & Traders Heine v. Melbourn, Ex parte Melchers, National Board v. Melvin v. Martin Merchant's Despatch Transpor TATION CO., TALBOTT V. Merchants' Life Assoc, Seiders y. Meroney v. Atlanta N. B. & L. Assoc. 414 Mershon v. Moors | ' •* Messimy v. Registry I^h Messner, Main o. *™ Mexican Nat. Ry., De Ham v. Meyer, Claflin v. Mildred, Maspons v. Miles, Breton v. Mdlar, Vining v. Millard v. Brayton Miller v. Campbell r. Miller v. Wilson Fant v. Miller, Sell v. Mi i.i.ik i.n v. Pratt Mills r. Wilson l'attison v. Miner, Fellows >: Missouri Steamship Co., Inre Mitchell V. Ward Monroe. Cahalan v. Monteith v. Monteith Moore r. Church Benbow '•. Gidney v. Moors, Mershon v. Morgan v. McGhee 11 350 455 239 159 4 OS 461 124 :;c,<.) :•/,! 25 355 355 466 269 Nat v. Coons Natchitoches, Iron Co. v. National Board v. Melchers National Broadway Bank, First Nat. Bank v. Nat. Mut. B. & L. Assoc, v. Burch Neal, Todd v. Needham v. R. R. Neptune Ins. Co., Loring v. Nevitt, Brown v. Newell, Bowen v. New England Mtg. Sec. Co., Odom v. New Jersey S. N. Co., Hale v. Newman, Bradshaw v. Newmarket Bank v. Butler New < Means, Sickles v. New Orleans, M. & T. R. R-, Mor- gan y. New York & New England R. K-, Davis v. New York & N. E. R. R., Walsh v. Ngqobela i>. Sihele Nichols o. Porter Nichols & Shepard Co. v. Mar- shall Nixon, Harrison v. Njus v. C. M. & S. P. Ry. Norman v. Norman Northampton Mut. Live Stock I NS . ( !o. v. Tuttle North Atchison Bank, Garrettson v. Northern Pacific R. R. v. Bab- cock N. W. Bank v. Poynter Norton, Brackett v. Norton, Marvin Safe Co. v. Norton, Pritchard v. Nott, Staples v. ooi, 269 154 548 :;si 255 240 L46 162 286 228 179 80 o. Oates, Williams v. Odom v. N. E. Mtg. Sec. Co. Offal '•• Flagg ( >gden, Lyon t», OOILVIR, QOEEN V. 207 414 522 319 548 414 528 414 539 400 493 282 501 316 328 80 512 21 2s<; 328 44 350 358 335 168 648 171 ::ss 512 93 111 L69 27:; 483 Xll TABLE OF CASES. Oliver v. Lake Olney, Lapham v. Ory v. Winter Osburn, Dammert v. McCartney v. Otis, Fisher v. OVERMANN, ROUQUETTE V. P. Page 455 272 511 269 286 414 622 Pack, Holland v. 315 Packard, Bell v. 17 Paine, Keller v. 166 Palmer, Electric Co. v. 477 Panama R. R., Whitford v. 315 Pancoast v. Travelers' Ins. Co. 414 Paraguay, Lynch v. 255 Park Bros. & Co. v. Kelly Axe Mfg. Co. 369 Parkis, Hinman v. 240 Patterson, S. v. 43 Pattison v. Mills 455 Pavey, Purdom v. 203 Pawcatuck Nat. Bank v. Barber 528 Pearson v. Pearson 98 Pellochoux, Besse v. 228 Penfield v. Tower 202, 282 Peninsular & O. S. N. Co. v. Shand 539 Pennegar v. S. 93 Pennsylvania R. R., Burnett v. 546 Pennsylvania R. R., Davidow v. 319 Sleeper v. 158 Pennsylvania Co. v. Fairchild 539 Pennsylvania Co., Alexander ?>. 325 People's B. & L. Assoc, Andruss v. 414 Peoples' Mut. Ben. Soc, Voorheis v. 352 Pepin i*. Bruyere 273 Perkins, Snow v. 522, 527 Perlee, Scott v. 419 Perry v. Mount Hope Iron Co. 357 Perry, Lincoln v. 286 Peterson v. Kaigler 159 Petit, Succession of 255 Pettyjohn, Mackev v. 158 Phelps v. Borland" 493 Phelps & Bigelow W. M. Co., Inv. Co. v. 154 Phenix Ins. Co., Liverpool & G. W. Steam Co. v. 531 Phillips v. Eyre 308 Phillips v. Gregg 43, 50 v. Madrid 93 Phipps v. Harding 512 Phcenix Nat. Bank u. Batcheller 493 Pickrell, Robertson v. 269 Pierce v. Insdeth 527 Watriss i\ 430 Piercy, In re 279 Pillow, Hall v. 159 Pine v. Smith 419 Pine River Bank, Hill v. 17 Plaisted, Boothby v. 356 Pollard, Ex parte 198 Pond, Andrews v. 409 Pondsford v. Johnson 93 Page Poole, Greer v. 441 Porter, Nichols v. 512 Portsmouth Bridge, Beecham v. 328 Post v. First Nat. Bank 26, 151 Poynter, N. W. Bank v. 158 Pratt v. Douglas 272 Pratt, Milliken v. 11, 355 Price v. Tally 433 Price, In re 297 Price, Astoi v. 419 Priest, Acker v. 200 Pritchard v. Norton 388 Proctor v. Clark 286 Pryor v. Wright 527 Public Parks Amusement Co. v. Car- riage Co. 176 Pugh i\ Cameron 350 Pullis Bros. Iron Co. v. Natchitoches 154 Purdom v. Pavey 203 Q. quart1n v. quartin 295 Queen v. Ogilvie 483 Queen, Robinson v. 151 Queensland Mercantile & Agency Co., In re 182 R. Raaz, Bernheim v. 362 Rabun v. Rabun 158 Railroad or Railway v. Exposition Cotton Mills 542 v. Lewis 332 De la Vergne R. M. Co. v. 181 Goodman v. 335 McLeod v. 315 Needham v. 319 Rudiger v. 335 Ramsay, Allshouse v. 369 Raymond v. Holmes 522 Read, Chew v. 522 Healey v. 279 Readme, Arbuckle 404 Reed, John A. Tolman Co. v. 355 Reed, Mullen v. 431 R. i\ Brampton 50 Registry, Messimy v. 148 Reid v. Gray 210 Goods of 294 Rep. v. Li Shee 44 Reyher v. Gautreau 193 Reynaud v. Martel 39 Rhode Island Locomotive Works, Hervey v. 166 Rhodes v. Borden 493 Richardson v. De Giverville 243 v. Rowland 404 Richards, T. & P. Ry. v. 323 Riddle v. Hudgins 210 Ridley, Woods v. 514 Riley, Townsend v. 414 Rindskopf v. De Ruyter 356 ; TABLE OF CASES. XUl Roberts v. Atherton Roberts, Male v. Roberts, Van Sant r. Robertson v. Pickrell Robinson v. Bland Robinson v. Queen Roche v. Washington Rockwell v. Bradshaw Rosenbaum v. Garrett Ross v. Ross Rothschild v. Currie IiOTTA V- EHRT ROHQDBTTB V. OvERMANN Rouse, C. & E. I. R. R. v. Rowell. Dow v. Rowland v. B. & L. Ass. Mott v. Richardson v. Rucker, Ex parte Rudiger v. R. R. Russell v. Madden Blanchard v. Rustad, Wilson v. S. S. v. G. St. Clair Tunnel Co., Turner v. St. Croix Lumber Co., Bronson v. Samuel v. Arrouabd Sands v. Smith Sankey, Van Matre v. Santo Venia, Focrgeacd v. Sarria, King v. Satterthwaite v. Doughty Saul v. His Creditors Savings Bank v. National Bank Savings Co., Falls v. Sawyer, Goddard v. Ins. Co. v. Sayn-Wittgenstein Sayn, Affair of Scales, McGoon v. 1<^> Scheferling v. Huffman Schirmek, Mahler v. Schlenker, Hyman v. Schluter v. Bank Scotland, The Scott v. A. G. Scott v. Key v. Perlee Scott v. Seymour Scott, Valery v. Scrimshire v. Scrimshire Scudder v. Union Nat. Bank Seiberling, Manton v. Seiders v. Merchants' Life Assoc. Sell v. Miller Sequeville, Bristow v. Skwai.l v. Wilmer Sewastianoff, Gibbs v. Sewell, Amer. P. M. Co. v. Sewei.l, Camhbll ' Seymour, Scott ?\ Shain, U. S. 8. & L. Co. v. Page 493 8 28-1 269 375 151 81 286 286 128 622 529 522 328 512 355 429 404 148 335 255 488 159 328 152 251 429 132 35 448 364 220 512 419 152 353 101 154 220 190 228 240 341 93 124 419 314 372 43 :',(■, I 152 394 25 864 302 528 419 154 414 Shand, P. & O. S. N. Co. v. Sharp v. Davis Sliauuck v. Bates S. v. Shaw v. Gould Shelby v. Guy Sheldon v. Haxton Sheldon, Aymar v. Sherman v. Gassett Shiff v. La. Ins. Co. Shuenfeldt v. Junkermann Sickles v. New Orleans SlEBBERAS V. De GeRONINO Sihele, Ngqobela v. Simondsw. White SlMONIN V. MALLAC Skelton v. Dustin Skottowe v. Ferrand Skottowe v. Young Sleeper v. Pa. R. R. Smart, Williamson v. Smith v. Condry v. Hutchings v. Kelly Smith v. McAtee Smith c. McLean v. Muncie Nat. Bank i'. Smith Smith, Alcock v. Smith, Comstock v. Drew v. McAllister v. Smith, McColldm v. Smith, Pine v. Sands v. Snow v. Perkins Societe Industrielle, Gibbs v. Somerville o. Somerville Sottomayor v. De Barros South African Breweries v. King Spahn, Armitage v. Stacy, Barker v. Staigg v. Atkinson Staigg, Atkinson v. Standard Fire Ins. Co., Galloway Standart, Hunt v. Staples v. Nott S. v. Colby v. Kennedy v. Patterson /■. Shattuck v. Tutty v. Williams Pennegar »•. State S. S. Co., In re Stehhins v- Leowolf Stevens v. Gregg Dunnigan v. Gilman /•. Stimson, Keenan v. Stix v. Matthews Storer, Eyre v. Strawberry Point Hank v. Lee Stall's Estate Sturdivant v. Hank Sullivan, Caulfield v. Page 539 414 151 93 107 158 414 518 430 441 362 282 204 80 548 50 528 139 140 158 148 345 159 124 228 159 414 43, 488 514 479 179 414 145 419 429 522, 527 486 255 72 388 159 159 283 286 v. 352 522 354, 512 356 98 43 93 98 355 93 345 478 512 522 477 159 273 512 93 419 286 XIV TABLE OF CASES. Sunderland, Estate of Sutton v. Warren Swank v. Hufnagle Swann v. Swann T. Page 132 72 23, 151 405 Taft, Fessenden v. 152, 419 Talbot, Baxter Nat. Bank v. 405 Talbott v. Merchant's D. T. Co. 542 Talisker Distillery, Hamlyn v. 456 Tally, Price ». 433 Tarbox v. Childs 476 Taylor, Glass Co. v. 355 Jones v. 159 Kanaga v. 159 Taylor Bros. Iron- Works Co., G. A. Gray Co. v. 179 Tenant v. Tenant 505 Tennant, White v. 255 Texas & P. Ry. v Richards 323 Thatcher v. Morris 401 Thayer v. Elliott 394 Thompson v. Ketcham 9 Yates v. 286 Thompson- Houston Electric Co. v. Palmer 477 Thornton v. Dean 414 Thorp v. Craig 522, 528 Thurman v. Kyle 154 Tiernan, Jackson v. 467 Tillinghast v. B. & P. Lumber Co. 358 Todd v. Neal 522 Tolman, Le Forest v. 315 Touro v. Cassin 401 Tower, Penfield v. 202, 282 Townes v. Durbin 240 Townsend v. Riley 414 Travelers' Ins. Co., Pancoast v. 414 Triplett, Washington Bank v. 528 Tucker, Lebel v. 612 Turner v. St. Clair Tunnel Co. 328 Tuttle, Ins. Co. v. 350 Tutty, S. v. 98 u. Underwood v. Amer. Mtg. Co. 414 Union Nat. Bank, Scddder v. 364 U. S. v. Garlinghouse 9 Cox v. 473 Glover v. 152 U. S. Bank v. Lee 159 U. S. Inv. Co. v. Phelps, &c. Co. 154 U. S. S. & L. Co. v. Shain 414 Usher o. W. J. R. R. 335 V. Vacher, Knowles Loom Works v. 179 Valery v. Scott 372 Van Buskirk, Green v. 160 Vandryes, Everett v. 514 Page Van Matre v. Sankey 132 Vannest, Brook v. 514 Van Reimsdyk v. Kane 362 Vansant v. Roherts 282 Van Steenwyk, Washburn v. 286 Van Storch v. Griffin 93 Van Voorhis v. Brintnall 93 Varthaliti, Codteaux v. 194 Vermont L. & T. Co., Dygert v. 414 Vining v. Millar 159 Voorheis v. Peoples' Mut. Ben. Soc. 352 W. Wade, Williams v. Walker, Atwater v. Columbia Bank v. Wall v. Williamson Walsh v. Dart v. N. Y. & N. E. R. R. Ward, Mitchell v. Ware v. Wisner Warner v. Citizens' Bank Warren v. Copelin Ames Iron Works v. Sutton v. Warter v. Warter Washburn v. Van Steenwyk Washington, Roche v. Washington Bank v. Triplett Waters v. Barton Watriss v. Pierce Watson v. Lane Watson, Cameron v. Waverly Nat. Bank v. Hall Wayne County Savings Bank v. Low Webster v. Howe Machine Co. Webster, Blackwell v. Weinstein i\ Freyer Wells, Worcester Bank v. Welsch, Bonati v. Western N. Y. & P. R. R., Wooden v. West Jersey R. R., Usher v. Wheeler, Anderson v. Barter v. Wood v. 17, 25, Whipple v. Fowler White v. Keller v. Tennant Emanuel v. Simonds v. Whitford v. Panama R. R. Whitlow, L. & N. R. R. v. Whitten v. Bennett Wick v. Dawson William Glenny Glass Co. v. Taylor Wm. Knabe Mfg. Co., Ins. Co. v. Williams v. Colonial Bank v. Oates v. Wade Craig v. Denny Williams, Frierson v. 25, 522 419 246 77 527 328 255 294 522 512 166 72 76 286 81 528 158 430 350 286 445 42& 512 402 176 358 243 332 335 493 547 243 154 286 255 512 548 315 329 323 243 355 352 464 93 522 159 369 240 TABLE OF CASES. XV Williams, L. & N. R. R. v. S. r. Williamson v. Smart Beall v. Williamson*, Wall v. WlLMEK. SEWALL V. Wilson v. Carson v. Cox r. Lewiston Mill Co. o. Kustad Miller v. Mills v. Windsor, Delop v. Winsor, Ice & C. S. Co. v. Winter, Ballard r. Winter, Oky v. Wisner, Ware v. Wolf v. Burke Wood v. Gibbs v. Wheeler Wooden v. W. N. Y. & P. R. Woodruff v. Hill Woods v. Ridley Woodward v. Woodward Woolery, La Selle v. Wooley v. Lyon Woolrich, Connolly v. Page 335 Worcester Bank v. Wells 355 Wright, Hill v. 148 l'ryor v. 159 Wyburn, Canterbury v. 77 Wylie, Enohin v. 302 Wynne v. Wynne 159 28(3 372 X. 159 369 X. v. Y. 355 168 294 Y. 159 511 Y., X. v. 294 Yates v. Thompson 369 Young v. Harris 512 Gue'pratte v. 17, 25, 243 Skottowe t\ I. 332 400 514 Z. 26 246 Zammaretti v. Zammaretti 522 Zediker, Bascom v. 80 Zimmerman, Davis v. Page 358 455 527 273 269 273 37 37 286 350 17, 364 140 258 355 240 CASES ON THE CONFLICT OF LAWS. PART III. THE CREATION OF RIGHTS. CHAPTER VI. PERSONAL RIGHTS. SECTION I. GENERAL PRINCIPLES. Story on the Conflict of Laws (1834), §§ 18, 20,21, 22, 23,26, 35. — Every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this rule is, that the laws of every State affect, and bind directly, all property, whether real or personal, within its territory : and all persons who are resident within it, whether natural born subjects or aliens ; and alsf Huey, 1 Grant Cas. 51. Sec Thompson v. Ketcham, S Johns. 100; whore it was assumed that the law of the place of contracting governed, but in the absence of evidence that defendant was by that law incapable the plaintiff recovered. —Ed. 2 Parts of the opinions only are given. — Ed. 10 COOPER V. COOPER. [CHAP. VI. acted upon their view how far the provision for the wife has complied with the conditions of the statute ; but such cases have no relation to the question of a minor's capacity by his or her act to part with rights with which the law would otherwise invest them. None of these cases relate to the question of incapacity to contract by reason of minority, and the capacity to contract is regulated by the law of domicil. Story has with his usual precision laid down the rule (Conflict of Laws, § 64) that if a person i under an incapacity to do any act by the law of his domicil, the act when done there will be governed by the same law wherever its validity may come into contestation with any other country : quando lex in personam dirigitur respicieudum est ad leges illius civitatis qua? personam habet subjectam. There is an unusual concurrence in this view amongst the writers on international law : qua aetate minor contrahere possit et ejusmodi respicere oportet ad legem, cujusque domicilii : Burgundus, Tract 2, n. 6. C'est ainsi que la majorite et la minorite du domicile ont lieu par- tout meine pour les biens situes ailleurs : 1 Boullenois, Princip. Gen. 6. Quotiescunque de habilitate aut de inhabilitate personarum quaeratur, toties domicilii leges et statuta spectanda : D'Argentre. So also J. Voet : Quoties iu quaestione, an quis minor vel majorennis sit, obtinuit, id dijudicandum esse ex lege domicilii ; sit ut in loco domicilii minor- ennis, ubique terrarum pro tali habendus sit, et contra. It is said that the familiar exception of the place where the contract is to be performed prevents the application of the general rule, and that as both parties contemplated a Scottish married life, and as a con- sequence a Scottish domicil, the principle I have spoken of does not regulate the contract relations of these two persons. I think two answers may be given to this contention. In the first place, I think it is a misapplication of the principle upon which the exception is founded. Here there is no contractual obligation to make Scotland the domicil, nor is there any part of the contract which could not and ought not to receive complete fulfilment even if (contrary to what I admit was the contemplation of both the parties) the place of married life should remain in Ireland as if they had emigrated altogether and gone to some ether country. But another and a more overwhelming answer is to be found in this, that the argument assumes a binding contract, and if one of the parties was under incapacity the whole foundation of the argument fails. . . . Lord Watson. . . . Whether the capacity of a minor to bind himself by personal contract ought to be determined by the law of his domicil, or by the lex loci contractus, has been a fertile subject of controversy. In the present case it is unnecessary to decide the point, because Ire- land was the country of the appellant's domicil, and also the place where the contract was made. Tt was argued, however, for the re- spondents, that the appellant's objection to the contract, although it rests upon her alleged incapacity to give consent, must be decided by the law of Scotland, as the lex loci solutionis. I am by no means SECT. II.] MILLIKEN V. I'll ATT. 11 satisfied that Scotland was, in the proper sense of the phrase, the place of performance of the contract. The spouses no doubt intended to reside in Scotland, but they must also have intended that the contract should remain in force and be performed in any other country where they might, from choice or necessity, take up their abode. Apart from that consideration, and assuming Scotland to have been, in the strictest sense of the term, the locus solutionis, I think the argument of the respondents is untenable. The principle of international private law, which makes, in certain cases, the law of the place where it is to be performed the legal test of the validity of a contract, rests, in the first place, upon the assumption that the parties were, at the time when they contracted, both capable of giving an effectual consent; and, in the second place, upon an inference derived from the terms of the document, or from the circumstances of the case, that they mutually agreed to be bound by the lex loci solutionis in all questions touching its validity. That principle can, in my opinion, have no application to a case in which, at the time when they professed to contract, one of the parties was, according to the law of that party's domicil and also of the place of contracting, incapable of giving consent. . . . Lord Macnaghten. ... It has been doubted whether the personal competency or incompetency of an individual to contract depends on the law of the place where the contract is made or on the law of the place where the contracting party is domiciled. Perhaps in this country the question is not final by settled, though the preponderance of opinion here as well as abroad seems to be in favor of the law of the domicil. It may be that all cases are not to be governed by one and the same rule. But when the contract is made in the place whore the person whose capacity is in question is domiciled there can be no room for dispute. It is difficult to suppose that Mrs. Cooper could confer capacity on herself by contemplating a different country as the place where the contract was to be fulfilled, if that be the proper expression, or by contracting in view of an alteration of personal status which would bring with it a change of domicil. Appeal alloiced. 1 MILLIKEN v. PRATT. Supreme Judicial Couht of Massachi setts. 1878. [Reported 125 Massachusetts, 374.] Contract to recover $;"»<)() and interest from January G, 1872. Writ dated June 30, 187"). The case was submitted to the Superior Court on agreed facts, in substance as follows: The plaintiffs arc partners doing business in Portland, Maine, under i Sec//-/. Cooke'8 Trusts, 56 L. J. Ch 637. — Ed. 12 MILLIKEN V. PRATT. [CHAP. VI the firm name of Deering, Milliken & Co. The defendant is, and has been since 1850, the wife of Daniel Pratt, and both have always resided in Massachusetts. In 1870, Daniel, who was then doing busi- ness in Massachusetts, applied to the plaintiffs at Portland for credit, and they required of him, as a condition of granting the same, a guar- anty from the defendant to the amount of five hundred dollars, and accordingly he procured from his wife the following instrument : '• Portland, January 29, 1870. In consideration of one dollar paid by Deering, Milliken & Co., receipt of which is hereby acknowledged, I guarantee the payment to them bv Daniel Pratt of the sum of five hundred dollars, from time to time as he may want — this to be a con- tinuing guaranty. Sarah A. Pratt." This instrument was executed b} T the defendant two or three days after its date, at her home in Massachusetts, and there delivered by her to her husband, who sent it by mail from Massachusetts to the plaintiffs in Portland ; and the plaintiffs received it from the post- office in Portland early in February, 1870. The plaintiffs subsequently sold and delivered goods to Daniel from time to time until October 7, 1871, and charged the same to him, and, if competent, it may be taken to be true, that in so doing they relied upon the guaranty. Between February, 1870, and September 1, 1871, they sold and delivered goods to him on credit to an amount largely exceeding $500, which were fully settled and paid for by him. This action is brought for goods sold from September 1, 1871, to October 7, 1871, inclusive, amounting to $860.12, upon which he paid $300, leav- ing a balance due of $560.12. The one dollar mentioned in the guar- anty was not paid, and the only consideration moving to the defendant therefor was the giving of credit by the plaintiffs to her husband. Some of the goods were selected personally by Daniel at the plaintiffs' store in Portland, others were ordered by letters mailed by Daniel from Massachusetts to the plaintiffs at Portland, and all were sent by the plaintiffs by express from Portland to Daniel in Massachusetts, who paid all express charges. The parties were cognizant of the facts. By a statute of Maine, duly enacted and approved in 1866, it is enacted that " the contracts of any married woman, made for any law- ful purpose, shall be valid and binding, and may be enforced in the same manner as if she were sole." The statutes and the decisions of the court of Maine may be referred to. Payment was duly demanded of the defendant before the date of the writ, and was refused by her. The Superior Court ordered judgment for the defendant ; and the plaintiffs appealed to this court. Gray, C. J. The general rule is that the validity of a contract is to be determined by the law of the State in which it is made ; if it is valid there, it is deemed valid everywhere, and will sustain an action in the courts of a State whose laws do not permit such a contract. Scudder v. Union National Bank, 91 U. S. 406. Even a contract expressly SECT. II ] MILLIKEN V. PRATT. 13 prohibited by the statutes of the State in which the suit is brought, if not in itself immoral, is not necessarily nor usually deemed so invalid that the comity of the State, as administered by its courts, will refuse to entertain an action on such a contract made by one of its own citizens abroad in a State the laws of which permit it. Greenwood r. Curtis, 6 Mass. 358 ; M'Intyre v. Parks, 3 Met. 207. If the contract is completed in another State, it makes no difference in principle whether the citizen of this State goes in person, or sends an agent, or writes a letter, across the boundary line between the two States. As was said by Lord Lyndhurst, " If I, residing in England, send down my agent to Scotland, and he makes contracts for me there, it is the same as if I myself went there and made them." Pattison v. Mills, 1 Dow & CI. 342, 363. So if a person residing in this State signs and transmits, either by a messenger or through the post-office, to a person in another State, a written contract, which requires no special forms or solemnities in its execution, and no signature of the person to whom it is addressed, and is assented to and acted on by him there, the contract is made there, just as if the writer personally took the executed contract into the other State, or wrote and signed it there ; and it is no objection to the maintenance of an action thereon here, that such a contract is prohibited by the law of this Common- wealth. M'Intyre v. Parks, above cited. The guaranty, bearing date of Portland, in the State of Maine, was executed by the defendant, a married woman, having her home in this Commonwealth, as collateral security for the liability of her husband for goods sold by the . laintiffs to him, and was sent by her through him by mail to the plaintiffs at Portland. The sales of the goods ordered ^y him from the plaintiffs at Portland, and there delivered b}- them to him in person, or to a carrier for him, were made in the State of Maine. Orcutt v. Nelson, 1 Gray, 536 ; Kline v. Baker, 99 Mass. 253. The contract between the defendant and the plaintiffs was com- plete when the guaranty had been received and acted on by them at Portland, and not before. Jordan v. Dobbins, 122 Mass. 168. It must therefore be treated as made and to be performed in the State of Maine. The law of Maine authorized a married woman to bind herself by any contract as if she were unmarried. St. of Maine of 1866, c. 52; Mayo v. Hutchinson. 57 Maine, 546. The law of Massachusetts, as then existing, did not allow her to enter into a contract as surety or for the accommodation of her husband or of any third person. Gen. Sts. c. 108, § 3; Xourse '•. Henshaw, 123 Mass. 96. Since the mak- ing of the contract sued on, and before the bringing of this action, the law of this Commonwealth has been changed, so as to enable married women to make such contracts. St. 1874, c. 184 : Major r. Holmes, 124 Mass. 108; Kenworthy v. Sawyer, 125 Mass. 28. The question therefore i-. whether a contract made in another Stato by a married woman domiciled here, which a married woman was not 14 MILLIKEN V. PRATT. [CHAP. VI. at the time capable of making under the law of this Commonwealth, but was then allowed by the law of that State to make, and which she could now lawfully make in this Commonwealth, will sustain an action against her in our courts. It has been often stated by commentators that the law of the domicil, regulating the capacity of a person, accompanies and governs the person everywhere. But this statement, in modern times at least, is subject to many qualifications ; and the opinions of foreign jurists upon the subject, the principal of which are collected in the treatises of Mr. Justice Story and of Dr. Francis Wharton on the Conflict of Laws, are too varying and contradictory to control the general current of the English and American authorities in favor of holding that a contract, which by the law of the place is recognized as lawfully made by a capable person, is valid everywhere, although the person would not, under the law of his domicil, be deemed capable of mak- ing it. 1 Mr. Westlake, who wrote in 1858, after citing the decision of Lord Eldon, 2 well observed, "That there is not more authority on the sub- ject may be referred to its not having been questioned;" and summed up the law of England thus : " While the English law remains as it is, it must, on principle, be taken as exceeding, in the case of transac- tions having their seat here, not only a foreign age of majority, but also all foreign determination of status or capacity, whether made by law or by judicial act, since no difference can be established between the cases, nor does any exist on the continent." "The va- lidity of a contract made out of England, with regard to the personal capacity of the contractor, will be referred in our courts to the lex loci contractus ; that is, not to its particular provisions on the capacity of its domiciled subjects, but in this sense, that, if good where made, the contract will be held good here, and conversely." Westlake's Private International Law, §§ 401, 402, 404. 8 In Greenwood v. Curtis, Chief Justice Parsons said, " By the common law, upon principles of national comity, a contract made in a foreign place, and to be there executed, if valid by the laws of that place, may be a legitimate ground of action in the courts of this State ; although such contract may not be valid by our laws, or even may be i The learned Chief Justice here examined the following cases: Ex parte Lewis 1 Ves. Sen. 298 ; Morrison's Case, Mor. Diet. Dec. 4595 ; Ex parte Watkins, 2 Ves Sen 470- In re Houston, 1 Russ. 312; Johnstone v. Beattie, 10 CI. and F. 42; Stuart v. Bute, 9 H. L. C. 440 ; Nugent v. Vetzera, L. R. 2 Eq. 704 ; Woodworth v. Spring, 4 All. 321 ; Male v. Roberts, 3 Esp. 163 ; Thompson v. Ketcham, 8 Johns. 189. — Ed. 2 Male v. Roberts, supra. — Ed. 3 The learned Chief Justice here stated In re Hellmann's Will, L. R. 2 Eq. 363 ; and criticised the following Louisiana cases: Baldwin v. Gray, 16 Mart. 192; Saul v His Creditors, 17 Mart. 569; Audrews v. His Creditors, 11 La. 464; Le Breton v. Nouchet, 3 Mart. 60 ; Barrera v. Alpuente, 18 Mart. 69 ; Gamier v. Poydras, 13 La. 177 ; Gale v. Davis. 4 Mart. 645. —Ed. SECT. II.] MILLIKKN V. PRATT. 15 prohibited to our citizens; " and that the Chief Justice considered this rule as extending to questions of capacity is evident from his subse- quent illustration of a marriage contracted abroad between persons prohibited to intermarry by the law of their dotnicil. 6 Mass. 377- 379. The validity of such marriages (except in case of polygamy, or of marriages incestuous according to the general opinion of Christen- dom) has been repeatedly affirmed in this Commonwealth. Medway « Needham, 16 Mass. 157 ; Sutton v. Warren, 10 Met. 451 ; Common- wealth '•. Lane, 113 Muss. 458. The recent decision in Sottomayor v. De Barros, 3 P. D. 1, by which Lords Justices James, Baggallay, and Cotton, without referring to any of the cases that we have cited, and reversing the judgment of Sir Robert Phillimore in 2 P. D. SI, held that a marriage in England between first cousins, Portuguese subjects, resident in England, who by the law of Portugal were incapable of intermarrying except by a Papal dispensation, was therefore null and void in England, is utterly opposed to our law ; and consequently the dictum of Lord Justice Cotton, " It is a well-recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil," is entitled to little weight here. It is true that there are reasons of public policy for upholding the validity of marriages, that are not applicable to ordinary contracts ; but a greater disregard of the lex domicilii can hardly be suggested, than in the recognition of the validity of a marriage contracted in another State, which is not authorized by the law of the domicil, and ■which permanently affects the relations and the rights of two citizens and of others to be born. Mr. Justice Stor}-, in his Commentaries on the Conflict of Laws, after elaborate consideration of the authorities, arrives at the conclu- sion that "in regard to questions of minority or majority, competency or incompetency to marry, incapacities incident to coverture, guardian- ship, emancipation, and other personal qualities and disabilities, the law of the domicil of birth, or the law of any other acquired and fixed domicil, is not generally to govern, but the lex loci contractus ant actus, the law of the place where the contract is made, or the act done ; " or as he elsewhere sums it up, •• although foreign jurists generally hold that the law of the domicil ought to govern in regard to the capacity of persons to contract; yet the common law holds a different doctrine, namely, that the lex loci contractus is to govern." Story Contl. §§ 103, 241. So Chancellor Kent, although in some passages of the text of his Commentaries he seems to incline to the doctrine of the civilians, yet in the notes afterwards added unequivocally concurs in the conclusion of Mr. Justice Story. 2 Kent Com. 233 note, 458, 159 & note. In Pearl v. Hansborough, !> Humph. 426, the rule was carried so far as to hold that where a married woman domiciled with her husband in the Mate of Mississippi, by the law of which a purchase by a mar- ried woman was valid and the property purchased went to her separate 16 MILLIKEN V. PRATT. [CHAP. YI. use, bought personal property in Tennessee, by the law of which married women were incapable of contracting, the contract of purchase was void and could not be enforced in Tennessee. Some authorities, on the other hand, would uphold a contract made by a party capable by the law of his domicil, though incapable by the law of the place of the contract. In re Hellmann's Will, and Saul v. His Creditors, above cited. But that alternative is not here presented. In Hill v. Pine River Bank, 45 X. H. 300, the contract was made in the State of the woman's domicil, so that the question before us did not arise and was not considered. The principal reasons on which continental jurists have maintained that personal laws of the domicil, affecting the status and capacity of all inhabitants of a particular class, bind them wherever they may go, appear to have been that each State has the rightful power of regula- ting the status and condition of its subjects, and, being best acquainted with the circumstances of climate, race, character, manners, and cus- toms, can best judge at what age young persons may begin to act for themselves, and whether and how far married women may act indepen- dently of their husbands : that laws limiting the capacity of infants or of married women are intended for their protection, and cannot there- fore be dispensed with by their agreement ; that all civilized States recognize the incapacity of infants and married women ; and that a person, dealing with either, ordinarily has notice, by the apparent age or sex, that the person is likely to be of a class whom the laws pro- tect, and is thus put upon inquiry how far, by the law of the domicil of the person, the protection extends. On the other hand, it is only by the comity of other States that laws can operate beyond the limit of the State that makes them. In the great majority of cases, especially in this country, where it is so com- mon to travel, or to transact business through agents, or to correspond by letter, from one State to another, it is more just, as well as more convenient, to have regard to the law of the place of the contract, as a uniform rule operating on all contracts of the same kind, and which the contracting parties may be presumed to have in contemplation when making their contracts, than to require them at their peril to know the domicil of those with whom they deal, and to ascertain the law of that domicil, however remote, which in many cases could not be done with- out such delay as would greatly cripple the power of contracting abroad at all. As the law of another State can neither operate nor be executed in this State by its own force, but only by the comity of this State, its operation and enforcement here may be restricted by positive prohibi- tion of statute. A State may always by express enactment protect itself from being obliged to enforce in its courts contracts made abroad by its citizens, which are not authorized by its own laws. Under the French code, for instance, which enacts that the laws regulating the status and capacity of persons shall bind French subjects, even when SECT. II.] FREEMAN'S APPEAL. " living in a foreign country, a French court cannot enforce a contract made by a Frenchman abroad, which he is incapable ot making by the law of France. See Westlake, §§ 399, 400. It is possible also that in a State where the common law prevailed in ful force b which a married woman was deemed incapable oi binding he sel by anv contract whatever, it might be inferred that such an u ter incapacity, lasting throughout the joint lives of husband and wife, must be considered as so fixed by the settled pol.cy o the state, for the protection of its own citizens, that it could not be held b } the courts of that State to yield to the law of another State in which she mio-ht undertake to contract. But it is not true at the present day that all civilized States recognize the absolute incapacity of married women to make contracts, lbs tendency of modern legislation is to enlarge their capacity in this respect, and in many States they have nearly or quite the same powers as if unmarried. In Massachusetts, even at the time of the making ot the contract in question, a married woman was vested by statute with a very extensive power to carry on business by herself, and to bind herself by contracts with regard to her own property, business, and earnings ; and, before the bringing of the present action, the power had • been extended so as to include the making of all kinds of contracts, with any person but her husband, as if she were unmarried. There is therefore no reason of public policy which should prevent the main- tenance of this action. Judgment for the plaintiffs. FREEMAN'S APPEAL. Supreme Court of Errors of Connecticut. 1897. [Reported 68 Connecticut, 533.] Baldwin, J. Mrs. Mitchell, being a citizen of Connecticut, mar- ried a citizen of Connecticut in 1857, and they continued to reside in this State until his death. Her marriage gave her, under the laws of the State then in force, substantially the status which belonged to a married woman at common law. Her personal identity, from a juridi- cal point of view, was merged in that of her husband. Thereafter, dur- ing coverture, she could make no contract that would be binding upon her, even by his express authority. 1 Swift's Dig. 30. If she assumed to make such a contract, it was absolutely void. These personal disabilities the common law* imposed partly for the protection of the husband, and partly for that of the wife. To preserve i Ace. Bowles v. Field, 7s Fed. 742; Bell v. Packed, 69 Me. 105; Wood v. Wheeler, ill N. C 231. 16 S. E. 418; Baum ■. BirchaU, 150 Pa. 164, 24 Atl. 620; „ Dodge, is K. L 661, 29 Atl. 785. Contra, Guepratte v. Young, 4 _De G. and h. 217; Matthews v. Murchison, 17. Fed. 760 (senile). See Hill v. Pine Rivei Bank, 45 N. II. 300.— Ed. \OI.. 11. —2 IS freeman's APPEAL. [CHAr. VI. what property rights remained to her, as far as might be, against his creditors, various statutes were from time to time enacted, until this long ago became recognized as the established policj' of the State. Jackson v. Hubbard, 36 Conn. 10, 15. These statutes were mainly designed to protect her against others. The common law was sufficient to protect her against herself, and prior to 1877 it precluded her from making any contract as surety for her husband. Kilbourn v. Brown, 56 Conn. 149. A statute of that year establishes a different rule for women married after its enactment, but does not enlarge the rights of those previously married. General Statutes, § 2796. Whenever a peculiar status is assigned by law to the members of any particular class of persons, affecting their general position in or with regard to the rest of the communitj', no one belonging to such class can vary by any contract the rights and liabilities incident to this status. Anson's Principles of Contract, 328. If he could, his private agreements would outweigh the law of the land. Jus publicum pri- vatorum pactis mutari i ton potest. Coverture constitutes such a status, and one of its incidents in this State, at the time of Mrs. Mitchell's marriage, was a total disability to contract. So far as contracts of suretyship for their husbands are con- cerned, the disability of women married before 1877 remains absolute, unless both husband and wife have executed for public record a written contract, by which both accede to the provisions of the statute of that year and accept the rights which it offers to them. General Statutes, § 2798. No such contract was ever executed by Mrs. Mitchell. The claim in favor of the First National Bank of Chicago which has been allowed by the commissioners on her estate, was founded on a debt due from a mercantile firm in Illinois of which her husband was a member, for which she had assumed to make herself responsible, as guarantor, by a writing dated in Illinois but signed in this State. The creditor had agreed, in Illinois, with the firm to forbear suit if she and they (as a firm and individually) would become parties to such a paper ; and, after they had signed it there, had given it to her husband, in Illinois, to take to her, in this State, for execution. He procured her signature and then mailed the instrument to one of his partners at Chicago, by whom it was there delivered to the bank. The agreement of forbearance had been conditioned on the execution of the guaranty Vby the firm, its individual members, and Mrs. Mitchell. It was her credit only that was to give it value. Its execution by the others gave the bank nothing which it did not have, as fully, before. It did not become complete until it received her signature. It did not then be- come operative as a security, until it had been delivered to the creditor. Her husband cannot be deemed to have acted in procuring Mrs. Mitchell's signature, as the agent of the bank. No finding to that effect was made by the trial court, and no such agency is implied from the circumstances of the transaction. He had a direct interest in ob- taining the desired extension of credit. He was a principal in the 'o SECT. II.] FREEMAN'S APPEAL. 19 obligation. He sent the paper, as soon as it was completed, not to the bank, but to another of the principals. If he represented any one but himself, it was his copartners. The delivery of the paper by his wife to him, therefore, after her signature had been attached, was not a deliver} - to the bank, but simply purported to give him authority, as her agent, to make or procure such a delivery at some subsequent time. If, therefore, the guaranty, so far as concerns her obligation upon it, was ever delivered, it was delivered, and so first took effect, in Chicago. But its delivery there could not effect her, unless it was made by her or by her authorized agent. Morse, the partner who actually handed it to the bank, stood in no better position than her husband, whether regarded as the servant of the latter, or as a partner with him. In either case, the agency, by virtue of which the delivery was made, was created, if at all, in Connecticut. / But to create an agencv is to enter into a contractual relation. Mrs. Mitchell had no capacity to make any contract whereby her legal posi- tion in respect to all or any of the other members of the community would be varied. It would have varied it in respect to her husband, could she have constituted him her agent to put her, by the delivery of an instrument of guaranty, in the situation of a surety for his debt to a third party. He therefore derived no authority from her to make the deliver)- to the bank, and, as to her, the instrument never was delivered. It is true, that the guaranty, if a binding contract, was a contract made in Illinois. It might also be assumed, so far as concerns the law of this case (although this is a point as to which we express no opinion), that it was one to be performed in Illinois, and that as to the principals in the transaction it was fully an Illinois contract, and to be governed by the law of Illinois, as respects an} - question as to its validity. By that law, a married woman was free to enter into such an engagement, and to constitute an agent for that purpose. But the lex loci contractus is a rule of decision only when there is a contract, so made as to be subject to that law. It is a petitio principii to say that because the guaranty was delivered in Chicago, it is therefore to be held effectual or ineffectual, as against Mrs. Mitchell, by the law of that place. The underlying question is, was it, as to her, ever deliv- ered at all? It was not so delivered unless delivered by her authority ; and by the laws of Connecticut, where she assumed to give such authority, she could not give it. Cooper v. Cooper, L. R. 13 App. Cas.s, 88, 99, 100; Story on the Conflict of Laws, §§ 64, 65, 66a, 136; Dicey on the Conflict of Laws, Chap. XVIII. Rule 123. Had Mrs. Mitchell been within the State of Illinois, when she signed the guaranty, it may be that her personal presence would have so far made her a resident of that State as to subject her to its laws, in re- spect to acts done within its jurisdiction. But as whatever was done in Illinois to bind her to the bank was done under an agencv constituted in Connecticut, it is the law of Connecticut which must determine as to I? 20 freeman's appeal. [chap. VI. the authority of the agent, and so as to the validity of the obligation which he, as such, undertook to impose upon her by the delivery in Chicago of the paper signed by her in Bristol. The order drawn by Mrs. Mitchell on the executor of her father's will, directing him to pay over to the bank whatever might otherwise be coming to her as part of the estate in his hands, though dated at Chicago, was brought to her in behalf of the bank in Connecticut, signed and given back to the agent of the bank in Connecticut, ac- cepted by the executor in Connecticut, and then mailed in Connecticut by its agent to the bank at Chicago. The whole transaction, therefore, was completed here. The order became operative, if at all, to transfer her interest in her father's estate, when the executor had notice of it, and agreed to comply with it by handing his written acceptance to the agent of the bank. That Mr. Mitchell was acting in that capacity seems clear from the finding that the bank, after the firm had become insolvent and made an assignment for the benefit of its creditors, pre- pared the paper and sent it to him, to procure her signature to it. No assignment which she could make would benefit the firm. If its result was to satisfy the claim of the bank, she would be subrogated to its place, and their creditors would receive no greater dividend. The order, also, was for the payment of a share in the estate of a deceased citizen of Connecticut, in course of settlement in its courts. Under these circumstances, its validity must be determined by the laws of Connecticut, and being dependent on the contractual act of a married woman, not for the benefit of herself, her family, or her estate, it was void. There have been cases not differing essentially in principle from that at bar, in which courts, to whose opinions great consideration is due, have come to conclusions varying from those which we have reached. The leading one is Milliken v. Pratt, 125 Mass. 374. There a guaranty by a married woman of such debts as her husband might thereafter contract was signed in Massachusetts, delivered there by her to him, and by him there mailed to the other party, in Maine. The court held that the contract became complete when the guaranty was received and acted upon by the latter, and not before ; and enforced it as one made and to be performed in Maine, where married women then had power to enter into such agreements. No reference was made to the fact (which may, perhaps, have been immaterial under the laws of Massa- chusetts), that the delivery was made by the husband, acting as the agent of the wife, — a fact which, in our view under the common law of Connecticut, is of controlling importance. Engagements which coverture prevents a woman from making herself, she cannot make through the interposition of an agent, whom she as- sumes to constitute as such in the State of her domicil. If this were not so, the law could always be evaded by her appointment of an attor- ney to act for her in the execution of contracts. No principle of comity can require a State to lend the aid of its courts to enforce a security SECT. II.] NICHOLS & SHEPARD CO. V. MARSHALL. 21 which rests on a transgression of its own law by one of its own citizens, committed within its own territory. Such was, in effect, the act by which Mrs. Mitchell undertook to do what she had no legal capacity to do, by making her husband her agent to deliver the guaranty to the bank. He had no more power to make it operative by delivery in Chicago to one of his creditors in Illinois, than he would have had to make It operative by delivery here, had it been drawn in favor of one of his creditors in Connecticut. It is not the place of delivery that con- trols, but the power of delivery. The Superior Court is advised to disallow all and every part of the claim of the First National Bank. In this opinion the other judges concurred. NICHOLS & SHEPARD COMPANY v. MARSHALL. Supreme Court of Iowa. 1899. [Reported 108 Iowa, 518.] Deemer, J. Defendant is a married woman domiciled in this State. On or about the ninth day of July, 1894, she signed the note in suit, in the State of Indiana, at which place she was temporarily visiting, as surety for Milton W. Gregory. The note was made payable at the Indiana National Bank of Indianapolis. The laws of Indiana (section 6964, Burns' Rev. St.) provide that "a married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall bo void." It is insisted on behalf of appellant that as defendant was domiciled in this State at the time she made the note, her capacity to contract followed her into the State of Indiana, and validated her contract made in that commonwealth, and that the right of a married woman to make a contract relates to her contractual capacity, and, when given by the law of the domicil, follows the person. Our statutes permit the mak- ing of contracts of suretyship by married women, and, if appellant's postulate be correct, it follows that plaintiff is entitled to recover. The general rule seems to be, however, that the validity, nature, obli- gation, and interpretation of contracts are to be governed by the le.r loci contractus aut actus. Savary v. Savary, 3 Iowa, 272 ; Boyd r. Ellis, 11 Iowa, 97 ; Arnold v. Potter, 22 Iowa, 194 ; McDaniel v. Rail- way Co., 24 Iowa, 417; Burrows v. Stryker, 47 Iowa, 477; Bigelow v. Burnham, 90 Iowa, 300. The rule is also well settled that personal status is to be determined by the lex doniirilii. Ross v. Ross, 129 Mass. 243. Continental jurists have generally maintained that per- sonal laws of the domicil, affecting the status and capacity of all inhabitants of a particular class, bind them, wherever they may go, and that the validity of all contracts, in so far as the capacity of the 22 NICHOLS & SHEPARD CO. V. MARSHALL. [CHAP. VI. parties to contract is involved, depends upon the lex domicilii. Thus, the Code of Napoleon enacts, " The laws concerning the status and capacity of persons govern Frenchmen, even when residing in a foreign country." See also Story, Conflict of Laws (8th ed.), §§ 63-66 ; Wharton, Conflict of Laws (2d ed.), § 114. Some of the English cases have also followed this rule. Guepratte v. Young, 4 De Gex & S. 217, 5 Eng. Ruling Cas. 848 ; Sottomayor v. De Barros, 47 Law J. Prob. 23, 5 Eng. Ruling Cas. 814. But see, apparently to the con- trary, Burrows v. Jemino, 2 Strange, 733 ; Heriz v. De Casa Riera, 10 Law J. Ch. 47. We do not think the continental rule is applicable to our situation and condition. A State has the undoubted right to define the capacity or incapacity of its inhabitants, be they residents or temporary visitors ; and in this country, where travel is so common, and business has so little regard for State lines, it is more just, as well as more convenient, to have regard to the laws of the place of contract, as a uniform rule operating on all contracts, and which the contracting parties may be presumed to have had in contemplation when making their contracts, than to require them, at their peril, to know the domi- cil of those with whom the} T deal, and to ascertain the law of that domicil, however remote, which in many cases could not be done without such delay as would greatly cripple the power of contracting abroad at all. Indeed, it is a rule of almost universal application that the law of the State where the contract is made and where it is to be performed enters into, and becomes a part of that contract, to the same extent and with the same effect as if written into the contract at length. Each State must prescribe for itself who of its residents have capacity to contract, and what changes shall be made, if any, in the disabilities imposed by the common law. Thus, in Thompson v. Ket- chum, 8 Johns. 192, the note was made in Jamaica. The defence was infancy, according to the laws of New York. It was determined that the transaction was subject to the laws of the place of contract, and that infancy was a defence, or not, according to the laws of Jamaica. Mr. Justice Story, in his commentaries on Conflict of Laws, says : " In regard to questions of minority or majority, competency or incom- petency to marry, incapacities incident to coverture, guardianship, emancipation, and other personal qualities and disabilities, the law of the domicil of birth, or the law of any other acquired and fixed domi- cil, is not o-enerallv to firovern, but the lex loci contractus aut actus, where the contract is made or the act done." Story, Conflict of Laws, §§ 103, 241. See, also, 2 Kent Commentaries, 233, note; 2 Kent Commentaries, 458 ; 2 Kent Commentaries, 459, note. It will be observed that Chancellor Kent, in some passages of his text, seems to incline to the civilian doctrine, yet the notes clearly indicate that he concurs with Justice Story. See further, on this subject, Story, Con- flict of Laws (4th ed), §§ 101, 102. The case of Pearl v. Hans- borough, 9 Humph. 426, is almost exactly in point. In that case a married woman, domiciled with her husband in the State of Mississippi, SECT. II.] SWANK V. HUFNAGLE. 23 by the law of which a purchase by a married woman was valid, and the property purchased went to her separate use, bought personal property in Tennessee, by the law of which married women were inca- pable of contracting. The contract was held void and unenforceable in Tennessee. See, also, Male v. Roberts, 3 Esp. 163 ; Milliken v. Pratt, 125 Mass. 374 ; Carey r. Mackey, 82 Me. 516, 17 Am. St. 500 (20 Atl. Rep. 84) ; Baum v. Birchall, 150 Pa. St. 164 (24 Atl. Rep. 620) ; 2 Parsons, Contracts (8th ed.), *574, note ; 2 Parsons, Contracts, *575-*578. Saul v. Creditors, 5 Mart. (x. s.) 569, seems to be opposed to this rule. But as the case is from Louisiana, which State follows the civil law, it is not an authority. We may safely affirm, with Chancellor Kent, that while the continental jurists generally adopt the law of domicil, supposing it to come in conflict with the law of the place of contract, the English common law adopts the lex loci contractus. Lord Eldon, in Male v. Roberts, supra, said: "It ap- pears from the evidence in this case that the cause of action arose in Scotland, and the contract must be therefore governed by the laws of that country, where the contract arises. Would infancy be a good defence b}' the laws of Scotland, had the action been commenced there? What the law of Scotland is with respect to the right of recovering against an infant for necessaries, I cannot sa}- ; but, if the law of Scot- land is that such a contract as the present could not be enforced against an infant, that should have been given in evidence, and I hold myself not warranted in saying that such a contract is void 03- the law of Scotland because it is void by the law of England. The law of the country where the contract arose must govern the contract, and what that law is should be given in evidence to me as a fact. No such evidence has been given, and I cannot take the fact of what that law is without evidence." It would seem, in this case, though not distinctly stated, that both parties were domiciled in England. The result of the application of these rules is that the contract was void where executed, and will not be enforced by the courts of this State. Affirmed. SWANK v. HUFNAGLE. Supreme Court of Indiana. 1887. [Reported 11 1 Indiana, 153.] Elliott, J. The appellant sued the appellee, Melissa Hufnagle, and her husband, upon a note and mortgage executed in Darke County, Ohio, on land situate in this State. The appellee, Melissa Hufnagle, answered that she was a married woman, .and that the mortgage was executed by her as the surety of her husband, and assumed to convey land in this State owned by her. The appellant replied that the con 24 SWANK V. HUFNAGLE. [CHAP. VL tract was made in Ohio, and that by a statute of that State a married woman had power to execute such a mortgage, but the statute of Ohio is not set forth. The trial court did right in adjudging the reply bad. The validity of the mortgage of real property is to be determined by the law of the place where the property is situated. Mr. Jones says : "A mortgage of course takes effect by virtue of the law of the place where the land is situated." 1 Jones, Mortg. § 823. This is well settled law. Story, Conflict of Laws (8th ed.), 609 auth. n. ; Bethell v. Bethell, 92 Ind. 318. Judge Story, in sections 66 and 102 of his work on the Conflict of Laws, does not treat of conveyances or mortgages of land, but of con- tracts of an entirely different class, so that the appellant gets no support from what is there laid down as the law. Under the act of 1881 a mortgage executed by a married woman as surety on land owned by her in this State is void. There is another reason for adjudging the reply bad, and that is this, it does not set out the foreign statute on which it professes to be based. It is well settled that where a pleading is founded on a foreign statute the statute must be set forth. Wilson v. Clark, 11- Ind. 385; Men- denhall v. Gately, 18 Ind. 149 ; Kenyon v. Smith, 24 Ind. 11 ; Tyler v. Kent, 52 Ind. 583 ; Milligan v. State, ex rel, 86 Ind. 553. We cannot disturb the finding on the evidence. Judgment affirmed. o On Petition for a Rehearing. Elliott, J. In the argument on the petition for a rehearing, counsel contend that we were in error in holding that a mortgage executed by a married woman in Ohio as surety for her husband can- not be enforced in this State, and they refer us to cases holding that the construction of a contract is governed by the law of the place where it was made. But the argument is unavailing, for counsel mistake the point in dispute. The question is not how the contract shall be construed, but had the married woman capacity to execute it? The question is one of capacity, not of construction. The trial court was not asked to construe a mortgage, but to enforce one which our statute declares shall not be enforceable. The purpose of the suit is not to obtain a judicial interpretation of a contract, but to foreclose a mortgage which our law declares a married woman has no capacity to execute. We suppose it quite clear that if the mortgagor has no capacity to execute a deed or mortgage, the instrument cannot be enforced, although the incapacity is established by the law of the place where the land is situated. If, for instance, a married woman should ex- ecute a deed or mortgage without her husband joining with her, it could not be enforced in a State where the law required her husband to join. This is so because the question is one of power, and power SECT. II.] SELL V. MILLER. 25 is created or withheld by the law of the place where tbe land lies. It is hardly necessary to cite authorities upon this elementary proposi- tion, but there is so conveniently at hand a decision of the Supreme Court of Ohio, where the rule is affirmed, that we cite it. Brown v. National Bank, 44 Ohio St. 269. In that case it was said : " We are not unmindful of the principle that deeds intended to convey or en- cumber an interest in land situated in one State, executed in another, must derive their vitality from the laws of the former." Our statute provides that the deeds of persons under twenty-one years of age shall be voidable, and this law would undoubtedly entitle an infant under that age to avoid a deed to land in this State ex- ecuted in Ohio, and the principle in such a case is the same as that which rules here, for, in both cases, the question is one of capacity. In discussing this question an American author says: "But in re- ference to contracts about the sale and conveyance of land such capacity depends upon the laws of the State wherein the land is situated. This is the general ruling in America as to the law upon these subjects, in whatsoever court the question may arise, domestic or foreign. This rule applies to questions of infanc}', coverture, majority, and of legal capacity generally." Rorer, Inter-State Law, 190 ; 1 Jones, Mortg., § 662 ; 4 Kent Com., star p. 441. Petition overruled, 1 SELL v. MILLER. Supreme Court of Ohio. 1860. [Reported 11 Ohio State, 331.] By the Court. Where a married woman over eighteen, but under twenty-one years of age, has her domicil, and joins with her husband in the execution of a mortgage, within a foreign jurisdiction, where the age of majority is fixed at twenty-one years, upon real estate situate in Ohio, held : That such mortgage is not invalid for want of capacity on her part to contract ; the capacity to contract, in respect to immovables, being governed by the law of the situs, and not by the law of the domicil. Motion overruled. 1 Ace. Post v. First Nat. Bank, 138 111. 559, 2s N. E. 978 ; Cochran i>. Benton, 126 Inil. 58; Frierson v. Williams, 57 Miss. 451; Johnson V. Gawtry, 1 Mo. App. 322 ; Wood v. Wheeler, 1 1 1 N. C. 231 ; Bauin v. Birchall, 150 l'a. 104, 24 Atl. 620. Contra, Kelly v. Davis, 28 La. Ann. 773. — Ed. 26 WOODWARD V. WOODWARD. [CHAP. VI. In re HELLMANN'S WILL. Chancery. 1886. [Reported Law Reports. 2 Equity, 363.] Christian Hellmann, being domiciled in England, by his will bequeathed the sum of £250 to each of the two children of Char- lotte Helsig. These children were a daughter, aged eighteen, and a son, aged seventeen, both resident and domiciled in Hamburg. According to the law of Hamburg, girls become of age on complet- ing their eighteenth year; boys, on completing their twenty-second. By the same law the father of an infant is entitled, as guardian, to receive a legacy bequeathed to the infant. Under these circumstances the executors applied, under the Acts 22 & 23 Vict. c. 35, and 23 & 24 Vict. c. 38, for the direction of the court as to the payment of the legacies. Lord Romilly, M. R. I am of opinion that the legacy to the daughter, who is of age according to the law of Hamburg, may be paid to her on her own receipt. The legacy to the son may be paid to him on his attaining full age according to English law or according to the law of Hamburg, whichever first happens ; in the meantime it must be dealt with in the usual way as an infant's legacy. 1 WOODWARD v. WOODWARD. Supreme Court of Tennessee. 1889. [Reported 87 Tennessee, 644.] Folkes, J. This is a petition by Rosa P. Woodward, filed in the Probate Court of Shelby County, against her guardian, Emmet Wood- ward, in which she seeks to have a settlement of his guardian accounts, and to have the balance in his hands found due paid over to her. She alleges her domicil and residence in the State of Louisiana, and sets up and exhibits with her petition certified copies of the proceed- ings had in that State, whereby she has been emancipated from the disabilities of infancy, under and in pursuance of the statute of the State authorizing, in certain cases, the emancipation of persons who have attained the age of eighteen. The petition alleges that, in conse- quence of such decree, she is, under the laws of the State of Louisiana, of full age, and as such entitled to demand and receive her estate. i Ace. Bonohoe v. Donohoe, 19 L. R. Ir. 349 ; 13 Clunet, 472 (Austria, 22 Jan. '81 ). And see Kohne's Estate, 1 Pars. Eq. Cas. 399. In the same way a fund will be paid over to a married woman if by the law of her domicil she is authorized to receive it independently of her husband. Ex parte Lett, 7 L. R. Ir. 132. — Ed. SECT. II.] WOODWAKD V. WOODWARD. 27 It is shown that both her parents are dead ; that her father died of yellow fever, intestate, in 1873, leaving several children, all of whom are now over twenty-one years of age except petitioner, and have received from their guardian their share of their father's estate ; that defendant, Emmet Woodward, was appointed guardian for herself and brothers and sisters by the Probate Court of Shelby Count}- shortly after her father's death ; that there is now in his hands about $8,000 belonging to her, which he holds as such guardian ; that shortly after her father's death, by proceedings duly had in the Probate Court of Shelby County, petitioner was adopted by C. Dickman, the husband of her maternal aunt, under and in pursuance of the statutes of Tennessee in such cases made and provided ; that such adoption was with the consent and approval of the defendant, Emmet Woodward, her regular guardian ; that several years thereafter C. Dickman removed from the State of Tennessee to the State of Louisiana with the view of taking up his permanent abode there, and has ever since and still does reside there, the State of Louisiana being the State of his domicil ; that petitioner, after her adoption, became a member of the family of C. Dickman, her adoptive father, and did remove with him and his family to the State of Louisiana, and has ever since resided there ; that Louisiana is the State of her domicil, and was at the time of the judicial proceedings therein resulting in her emancipation. She alleges in her petition that it is her desire, and to her interest, to have and receive the estate coming to her from her said father as aforesaid, by reason of the fact that it is now in the hands of the guardian, only yielding her a revenue of six per cent, charged with the commissions, expenses, and costs incident to such guardianship, while she can readily obtain a permanent eight per cent investment of her funds in the State of Louisiana, where that rate of interest is legal, freed from costs and expenses of guardianship. She insists that the State of Ten- nessee will recognize her majority as determined and fixed by judicial decree in the State of her domicil, and would recognize as valid any receipt, discharge, or acquittance that she might execute to her guar- dian for her estate now in his hands ; and that the Probate Court will order and direct a settlement of accounts, and the paying over to her the balance found to be due, so that the said guardian, and his sureties on his official bond, may be discharged from all further Liability. To this petition the defendant interposed a demurrer, upon the ground that petitioner was still a minor under twenty-one years of a^e ; that the proceedings had in the courts of Louisiana would have no extraterritorial effect by reason of the want of jurisdiction in said courts over the estate of the ward situated in Tennessee ; that the pro- ceedings had in Louisiana are unknown to the laws of Tennessee, and opposed to the policy of Tennessee law, ami contrary to the interests of the citizens of Tennessee, and would, therefore, not be recognized in the courts of this State ; that the said guardian is lawfully in posses- sion of said funds under the laws of this State, and has been guilty of 28 WOODWARD V. WOODWARD. [CHAP. VI. no breach of duty in relation thereto ; and that said petitioner, being a minor, cannot maintain this action in her own name. The probate judge sustained the demurrer, and dismissed the peti- tion. Petitioner has filed the record for a writ of error in this court. There are certain general principles which control the disposition of this case. They are, in the main, well settled; the difficulty lies in their application to the particular facts of the case in hand. " It is elementary that every State has an inherent right to determine the status or domestic or social condition of persons domiciled within its territory, except in so far as the powers in this respect are restrained by duties or obligations imposed upon them by the Constitution of the United States." Strader v. Graham, 10 How. 93. Again, the civil status is governed universally by one single princi- ple, — namely, that of domicil, — which is the criterion established by law for the purpose of determining the civil status, for it is on this basis that the personal rights of a party — that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy — must depend. Udny v. Udny, L. R. 1 H. L. Sc. 457. It is not seriously controverted by counsel for defendant that the judicial decree under which the disabilities of minority were removed in Louisiana had the same effect as though, by direct statute, the age of majority had been fixed at eighteen, so far as the status of minors domiciled in that State is concerned. The main contention in this connection being that, the domicil of origin of petitioner having been in Tennessee, petitioner has acquired and could acquire no domicil in Louisiana by reason of her removal to that State by her adoptive father. Before considering the question of removal and of the right of the adoptive father to acquire for his adopted child a new domicil, or, what is the same thing, the right or privilege of the adopted child to acquire a new domicil with her adoptive father, let us settle, if we can, what would be the proper disposition of the case had the petitioner been born and ever after domiciled in the State of Louisiana. In such cases we regard it as well settled that under unquestionable principles of private international law one State will recognize and give force and effect in its own tribunals to the legislation of another State, in so far as it fixes the status and capacity of married women and minors. This is frequently spoken of as a principle of comity ; and while it doubtless has its origin in considerations of comity, it has been so repeatedly and emphatically recognized by the courts of all civilized countries that it is now thoroughly crystallized into rules and principles of private international law. As is said in Ross v. Ross, 129 Mass. 243, in the elaborate discus- sion of the subject by Chief Justice Gray, " the status or condition of any person with the inherent capacity of succession or inheritance is to be ascertained by the law of the domicil which creates the status, at least when the status is one which may exist under the laws of the SECT. II.] WOODWARD V. WOODWARD. 29 State in which it is called in question, and when there is nothing in those laws to prohibit giving full effect to the status and capacity in the State of the domicil. " We are not aware of any case in England or America in which change of status in the country of the domicil, with the formalities prescribed by its laws, has not been allowed full effect as to the capacity thereb}' created of succeeding to and inheriting property in any other country, the laws of which hold a like change of status in a like manner, witli a like effect, under like circumstances." This principle is illustrated by the decree made In re Da Cunha, 1 Hagg. Ecc. R., page 237, where administration was granted in Eng- land, limited to the receipt of the dividend of a sum of English stock, to a Portuguese lady who, by the laws of her domicil, was emancipated from the disabilities of minority, but was, b}* the English law, still a minor. It was held that she was entitled to receive and receipt for the dividend on said stock in England. It is true, as insisted by counsel for defendant, that there is no elaboration of decision and of discussion made by the judges in the disposition of this case, but this fact in no manner detracts from its force and effect as authority. It does settle and determine that a person of full age by the law of her domicil, though a minor by the laws of England, is entitled to receive and give a valid acquittance for property to which she is entitled in England ; and such receipt, though confined to the dividend on the stock, is as conclusive of her right to act as a major as though she had received the corpus of the property, the dividend being all that she was, under the circumstances, entitled to. In Rule 32 of Dicey, we find it stated that the capacity of a person for the alienation of movables depends, so far as the question of infancy or majority is concerned, on the law of that person's domicil. 1 It is suggested, however, in response to this case, that the fact that the property going to the minor was by the will given to the minor by name, is indicative of the purpose to have the same paid over to the minor, according to the law of the place of her domicil, where her majority was reached at an earlier age than in England, and that for this reason it should not be controlling in a case where the property was inherited generally in one State, where twenty-one is the lawful age, and the full age at an earlier period is had by reason of the domi- cil in another State. We cannot appreciate the force of this suggestion. The court, in disposing of the case, indicates in nowise that its judgment or conclu- sion was influenced by any such consideration, and, so far as the case goes, it is merely an announcement, and application of the general principles contended for by petitioner. Had any special regard been given to the fact that property \v;is devised by will, instead of passing by law, it would have been more reasonable to have supposed that the 1 The court here examined /. 36 a. v. c. [chap. vi. his creditor. Though one may perhaps hold that Therese Bimet, who knew the Count of Santo Venia, was to blame for giving him credit in spite of certain facts which indicated his foreign nationality, the same blame cannot attach to bankers living far from Paris, who acted on information furnished them by the holder of the drafts, and by declara- tions as to domicil upon the drafts, and were therefore excusable for not having investigated a capacity which no particular fact or circum- stance authorized them to suspect. If one considers the greater interest of the security of a holder in dealing with commercial paper, a bill of exchange is sufficiently pro- tected by holding that the bearer who has discounted the signature of a foreigner in ignorance of his qualit}' and of the law which forbids him to contract has acted in good faith and with the degree of care which the nature of the contract requires. It follows that the Count of Santo Venia is justified neither in law nor in fact in asserting the nullity of the obligation he has contracted. A. v. C. Supreme Court of Austria. 1882. [Reported 13 Clunet, 468.] A., a Prussian, came of age, according to the Prussian law, on Janu- ary 24, 1878, when she reached the age of twenty-oue. She married C, an Austrian, August 25, 1879 ; and on October 19, 1880, at Prague, she accepted a bill of exchange. Being sued by A. on the bill, she alleged that at the time of the acceptance she had not reached the age of twenty-four, and accordinglv was not of age by the Austrian law. nor capable of binding herself on a bill of exchange or negotiable note. The lower court allowed the defence on the ground that she had become Austrian by marriage, and that one who becomes an Austrian submits himself to Austrian laws, and his capacity should be determined by those laws. 1 On appeal, the judgment was reversed, for the following reasons : The defendant had, as a Prussian, reached her majority on January 24, 1878 ; she then became capable of accepting a bill of exchange. She alleges that on her marriage with an Austrian this capacity ceased. It is true that she became an Austrian, but this fact could not deprive her of rights already acquired, and she should be considered as of age and capable at all times after January 24, 1878. On appeal to the Supreme Court this judgment was confirmed. 1 The text of the judgment is omitted.— Ed. SEC/. 11.] X. V. Y. 37 X. v. Y. Civil Tribunal of the Seine. 1893. [Reported 20 Clunet, 530.] The Tribunal. The firm of X., ladies' tailors, delivered to Mrs. Y. between April and August, 1888, clothes and furnishings amounting to the sum of 404 francs. They brought suit for payment May 20, 1890. The defendant, a Frenchwoman by origin, married at Paris in 1876 Y., an English merchant, then domiciled at P., and thereby became English. By the terms of their marriage contract the spouses adopted the system of community of goods, as established by the French Civil Code. Soon after the marriage, Y. moved his business and his resi- dence to Paris. By a judgment of this Tribunal in 1889 a separation of goods was decreed between Mrs. Y. and her husband, and by a second judgment of May 6, 1890, they were divorced. The plaintiffs claim, in the first place, that Mrs. Y. is liable to them in the action de in rem verso ; or else by her personal undertaking made after the separation of goods to pay the debt in question ; in the second place, that in an}' case Mrs. Y. being English should be bound b}' her national law, and .might legally bind herself without her hus- band's consent by virtue of the English Act of August 18, 1882. On the first point, there is no doubt that according to the French Civil Code Mrs. Y. would not be bound. So far as the action de in rem verso is concerned, the furnishings were made almost a year before the separation of goods, and therefore constituted a community debt, according to Articles 214 and 1409, § 5, of the Civil Code. Admitting that the defendant got the benefit of them, it was only as any married woman living with her husband with community of goods would get a benefit. The community, which Mrs. Y. gave up in 1889, would alone be bound. Regarding her personal undertaking to pay, by her card addressed to X. March 10, 1889, supposing the defendant wished to make a personal undertaking, the agreement was null for default of authorit} 7 from her husband. By virtue of the principles laid down in Articles 217 and 1449 of the Civil Code, a wife after separation of goods can contract without her husband's authority only within the limits of a wise administration ; and one could not claim that this con- tract would fall within such limits, since, in undertaking to pay a debt for which she was not bound, according to the principles of our law, Mrs. Y. would have (lone an act without consideration, a pure gratuity. On the second point, it is generally agreed that foreigners in France are governed, so far as concerns their civil status and capacity, by their national law. If this principle is not expressly laid down in any text of the law, it follows by implication from Article 3 of the Civil Code, which assumes the principle of the preponderance of the national law as regards personal condition ; and having imposed on foreigners 38 x. v. y. [chap. vi. the French law in matters of police and safety, and with respect to their immovables, remains silent as to their status and their civil capacity. ". . . By the terms of Articles 1 and 2 of the English Act of August 18, 1882, altering the law as to the property of married women, a married woman may contract as if she were sole, so as to bind her separate estate, and may be sued either in contract or in tort in all respects as if she were sole. Article 44 of the same Act provides that every contract made by a married woman so as to bind her separ- ate estate will bind not only her separate estate at the date of the con- tract but all after-acquired estate. To avoid the consequences of this law, Mrs. Y. urges (1) that the French jurisprudence applies to foreigners the rules of their statute personal only so far as the national law of the foreigners does not remit them, as to their status and capacity, to the law of the country where they are domiciled ; and that in fact English law remits English- men to the law of their domicil : (2) that in adopting the French sys- tem of community she has renounced her national law, at least so far as her capacity is concerned, and the authority of her husband is there- fore necessarv. 1 As to the first objection, the principle of Conflict of Laws that the defendant sets up as being the English law is not certain. In England, in fact, the Conflict of Laws is not the subject of positive statutory regulation, but depends on the " Common law," that is, on customary law, which is interpreted and moulded from da}' to day by jurisprud- ence. The English courts when dealing with conflicts between the English law and foreign laws in matters of status and personal capac- ity have a variable doctrine. Having allowed preponderance to the law of the act, they incline in fact to substitute for it in practice the law of the domicil ; but this is no more than a present tendency of English jurisprudence toward a doctrine, a tendency which cannot be characterized as the law of England. But were this rule certain, we could not accept the remission by the foreign law to the law of the domicil. In deciding that the law applicable to the status and capac- ity of foreigners in France is their national law, the French legislator considers that since the status and capacity of persons are dependent strictly on their national characteristics, that law is better calculated than an} T other to appreciate the conditions whence the rule of law is derived ; and that such law should be followed from high motives of reason and justice. But in adopting this principle, the legislator does not have in view the rule of international law in force in this case in the foreign system of law ; since the French law itself, in the exercise of its sovereignty, establishes the rule, and solves the conflict of French law with foreign laws, providing that foreigners shall be governed while in France by their statute personal, and directing the French judges to apply to them their national law. This is an imperative rule, to which 1 Part of the opinion, in which this second objection is held unfounded, is omitted. — Ed. SECT. II.] KEYNAUD V. MARTEL, 39 conformation has become necessary ; and we cannot substitute for it the different conception of a foreign system of law which attaches more importance in such a matter to the domicil than to the nationality. It follows that in this case the law applicable to the capacity of Mrs. Y is the English Act of 1882, relative to the capacity of married women ; and by virtue of this law the defendant legally bound herself without her husband's authorization. . . . REYNAUD v. MARTEL. Court of Appeal of Grenoble. 1892. [Reported 19 Clunet, 1143.] The Court. Peter Clapier was on June 18, 1891, condemned by the Court of Assizes of Gap to five years' imprisonment at hard labor for a rape. According to the provisions of article 29 of the Penal Code the condemned is under legal interdiction as long as his punishment lasts ; and Maitre Martel, notary at Serres, has been appointed his cmardian. This interdiction, which deprives the condemned of the use and administration of his property, is complementary to the principal punishment ; by the terms of the law, punishment at hard labor neces- sarily involves the accessorial punishment of legal interdiction. By the terms of Art. 3 of the Civil Code, laws of police and safety bind all inhabitants of French territory ; Clapier, an Italian subject, but condemned in France for a crime committed on French territory, is bound by the French repressive laws. Although the laws which create the statute personal of foreigners govern them in France, this rule ex- tends only to civil laws ; the safety of society requires that the criminal laws of France should bind all who inhabit French territory. Whatever the provisions of the Italian Code, Clapier, on his condemnation to five years' imprisonment with hard labor in France, is subject by the French penal code to the accessorial punishment of legal interdiction while the principal punishment lasts. The interdicted individual cannot himself appear in the action for damages brought against him by Reynaud, his victim's father; and the plaintiff has rightly brought the action against the guardian, Maitre Martel, who is his legal representative. 40 CUMMING V. CUMMING. [CHAP. VI. GUMMING v. CUMMING. Court of Appeal of Paris. 1895. [Reported 23 Clunet, 147.] The Widow Cumming applied for a conseil jucliciaire for her son William Curnming, by reason of his prodigality. The Tribunal of the Seine dismissed the application, and the plaintiff appealed. The Court. As a result of the general principles of law and of the provisions of Art. 3 of the Civil Code, 1 foreigners living in France are governed by their national law in all that concerns their status and personal capacity. The rule that the statute personal follows the person is a rule of public order which binds French judges in the case of con- flicts between different systems of law. It is not proved by any written law or by sufficiently trustworthy documents that according to the English law the status of persons domiciled abroad is governed not by the statute personal, but by the law of the domicil, to the exclusion of that of the allegiance ; but even if such a rule exists, it could be applied, .according to the evidence, only when the foreigner had definitively fixed his domicil in France animo manendi. Though Cumming established himself in business in France, it is not proved that he had abandoned the intention to return ; he did not apply to be admitted to the en- joyment of civil rights, but on the contraiT preserved and in all cir- cumstances maintained his nationality of origin ; he therefore remains subject to his national law in everything that concerns his personal status. The English law does not recognize the institution of the conseil jucli- ciaire. Therefore, without going into the case on the merits, the court declares the Widow Cumming unable to maintain her application, and orders her to pay costs of the original application and of the appeal. 1 " Laws of police and of safety bind all inhabitants of the territory. Immova- bles, even those in the possession of foreigners, are governed by the law of France. Laws concerning personal status and capacity bind Frenchmen, even while residing abroad." — Ed. SECT. III.] DALKYMPLE V. DALBYMPLB- 41 SECTION III. MARRIAGE. DALRYMPLE v. DALRYMPLE. Consistory Court of London. 1811. [Reported 2 Hagyard Consistory, 54.] This was a case of restitution of conjugal rights, brought by the wife against the husband, in which the chief point in discussion was, the validity of a Scotch marriage, per verba de prcesenti, and without reli- gious celebration : one of the parties being an English gentleman, not otherwise resident in Scotland than as quartered with his regiment in that country. Sir William Scott. 1 The cause has proceeded regularly on both sides, and has been instructed with a large mass of evidence, much of it replete with legal erudition, for which the court has to acknowledge great obligations to the gentlemen, who have been examined in Scotland. It has also been argued with great industry and ability bv the counsel on both sides, and now stands for final judgment. Being entertained in an English court, it must be adjudicated according to the principles of English law applicable to such a case. But the only principle appli- cable to such a case by the law of England is that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having fur- nished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland. . . . The considerations that apply to the indiscretions of youth, to the habits of a military profession, and to the ignorance of the law of Scot- land, arising from a foreign birth and education, are common to both, and I might say, to all systems of law. The}- are circumstances, which are not to be left entirely out of the consideration of the court, in weigh- ing the evidence for the establishment of the facts, but have no power- ful effect upon the legal nature of the transaction when established. The law, which, in both countries, allows the minor to marry, attri- butes to him, in a way which cannot be 1< igally averred against, upon the mere ground of youth and inexperience, a competent discretion to dispose of himself in marriage; he is arrived at years of discretion. quoad hoc, whatever he may be with respect to other transactions of life, and he cannot be heard to plead the indiscretion of minority. Still less can the habits of a particular profession exonerate a man from the 1 Part <>f tli^ opinion is omitted. — Ed. 42 DALRYMPLE V. DALKYMPLE. [CHAP. VI. general obligations of law. And with respect to any ignorance arising from foreign birth and education, it is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country, engages for a competent knowledge of the law of contracts in that country. If he rashly presumes to contract without such knowl- edge, he must take the inconveniences resulting from such ignorance upon himself, and not attempt to throw them upon the other party, who has engaged under a proper knowledge, and sense of the obligation, which the law would impose upon him by virtue of that engagement. According to the judgment of all the learned gentlemen who have been examined, the law of Scotland binds Mr. Dalrymple, though a minor, a soldier, and a foreigner, as effectively as it would do if he had been an adult, living in a civil capacity, and with an established domicil in that country. The marriage, which is pleaded to be constituted, by. virtue of some or all of the facts, of which I have just given the outline, and to which I shall have occasion more particularly to advert in the course of my judgment, has been in the argument described as a clandestine and irregular marriage. It is certainly a private transaction between the individuals, but it does not of course follow that it is to be considered as a clandestine transaction, in any ignominious meaning of the word ; for it may be that the law of the country in which the transaction took place may contemplate private marriages with as much countenance and favor as it does the most public. It depends likewise entirely upon the law of the country whether it is justly to be styled an irregular marriage. In some countries one only form of contracting marriage is acknowledged, as in our own, with the exception of particular indul- gences to persons of certain religious persuasions ; saving those excep- tions, all marriages not celebrated according to the prescribed form are mere nullities ; there is and can be no such thing in this country as an irregular marriage. In some other countries, all modes of exchang- ing consent being equally legal, all marriages are on that account equally reo-ular. In other countries, a form is recommended and sanctioned, but with a toleration and acknowledgment of other more private modes of effecting the same purpose, though under some discountenance of the law, on account of the non-conformity to the order that is established. What is the law of Scotland upon this point? . . . I entertain as confident an opinion as it becomes me to do, that the rule of the law of Scotland remains unshaken ; that the coutract de prmsenti does not require consummation in order to become ' very matrimony ; " that it does, ipso facto et ipso jure, constitute the relation of man and wife. . . . When I speak of a contract, I mean of course one that is attended with such qualifications as the law of Scotland requires for such a contract. 1 . . . i The court, upon examining the evidence, held that in this case a marriage had taken place according to the Scotch law. — Ed. SECT. III.] IN" RE IX M LIX YIXG. 43 Little now remains for me but to pronounce the formal sentence of the court ; . . . and I think I discharge that duty in pronouncing that Miss Gordon is the legal wife of John William Henry Dalrymple, Esq., and that he, in obedience to the law, is bound to receive her home in that character, and to treat her with conjugal affection, and to certify to this court that he has so done, by the first Session of the next Term. 1 In re LUM LIN YING. United States District Court (District of Oregon). 1891. [Reported 59 Federal Reporter, 682.] Bellinger, J. It is admitted that the person claiming to be the husband of the petitioner is a merchant doing business in this city. Is the petitioner his wife? He testified that she was betrothed to him at two years of age, and that six months ago the marriage was solem- nized according to the laws of China. He further testified that he had never seen his wife until her arrival here. Upon this last statement, I concluded to remand the petitioner, without further inquiry, but deferred to the urgent request, of her attorneys to be heard as to this alleged China marriage, and as to the bona fides of the marriage transaction. The only authority cited as to what constitutes the solemnization of marriage under Chinese laws is an article in the Encyclopedia Britannica by Prof. R. K. Douglas, professor of Chinese in King's College, London. According to this authority, marriage in China is an arrangement with which the parties most concerned have nothing to do. The duty of filial piety is said to be the final object of Chinese religious teaching, and, under its influence, parental will is a supreme authority, from which there is no appeal. Marriage, therefore, is not the result of acquaintanceship. "The bridegroom rarely sees his betrothed until she has become his wife." The preliminaries are entirely arranged In- professional go-betweens with the parents and families of the respective parties. The correspondence between the two, thus conducted, is in writing, and is of the briefest character. If the arrangements proceed satisfactorily, the particulars of the engagement are committed to writing upon duplicate cards. These are sewn together, and the cere- mony is complete. The bride journeys to the home of her husband, who may then see her for the first time. This is the system under which the marriage relied upon in this case is claimed to have taken place, 1 Upon successive appeals, the< lourt of Arches and the Court <>f Delegates affirmed the sentence of the ( Jonsistory ( lourt. Ace. Scrimshire v. Scrimshire, 'J Hagg. Cons. 395; Brinkley v. A. G., 15 P. I>. 70; McDeed I: McDeed, 67 III. •'>»•'>; Smith v. Smith, 52, N.J. L. L'<>: ; 8. v. Patterson, 2lre 346; Phillip! B.Gregg 10 Watts, 158. — Ed. 44 NORMAN V. NORMAN. [CHAP. VI. and is consistent with such marriage. The fact that such a marriage did take place, as testified to by the parties, is not contradicted, and is consistent with all the circumstances appearing in the case. If the parties were married according to the laws of China, such marriage is valid here. Parsons on Contracts says that "it seems to be generally admitted, and is certainly a doctrine of English and American law, that a marriage which is valid in the place where it is contracted is valid everywhere. The necessity and propriety of this rule are so obvious and so stringent that it can hardly be called in question." This rule is subject to the qualification that a marriage made elsewhere would not be acknowledged as valid in a State, the laws of which forbade it as incestuous. Meyer's Federal Decisions says the general rule is undoubtedly that a marriage good by the law of the place of solemnization is good everywhere. At the time of the marriage in question in this case, the husband was domiciled in the United States. This raises a question, as to whether China is the place of solemnization of the marriage. While the place of solemnization governs, by what rule shall such place be determined, when the parties are at the time within different jurisdic- tions? It is doubtful whether this is a China marriage. It is not enough, in my judgment, that such a marriage is valid under the laws of China. I am of opinion that it must not only be valid under such laws, but, to be valid elsewhere, must have been solemnized within the jurisdiction of those laws. 1 NORMAN v. NORMAN. Supreme Court of California. 1898. [Reported 121 California, 620.] Chipman, C. Action to have a certain marriage between plaintiff and defendant declared valid and binding upon the parties. A second amended complaint alleged that on August 2, 1897, defendant was a minor of the age of fifteen years and ten months, and that her father, one A. C Thomson, was her natural and only guardian; plaintiff was of the age of twenty-one years and ten months, and that both plaintiff and defendant were citizens and residents of Los Angeles County, California; on said day plaintiff and defendant, at Long Beach, on the coast of California, boarded a certain fishing and pleasure schooner of seventeen tons burden, called the "J. Willey," duly licensed under the laws of the United States, of which W. L. Pierson was captain, 1 Upon the evidence, the court held that the petitioner " does not belong to any class of persons within the exclusion acts of Congress," and therefore ordered her dis- charge, without deciding the question as to marriage. See Rep. v. Li Shee, 12 Hawaii, 329. — Ed. SECT. III.] NORMAN V. NORMAN. 45 and was enrolled as master thereof, and bad full charge of said vessel ; said vessel proceeded to a point on the high seas about nine miles from the nearest point from the boundary of the State and of the United States ; the parties then and there agreed, in the presence of said Pierson, to become husband and wife, and the said Pierson performed the ceremony of marriage, and among other things they promised in his presence to take each other for husband and wife, and he pronounced them husband and wife ; neither party had the consent of the father or mother or guardian of defendant to said mar- riage ; on the same day and immediately after said ceremony the parties returned to the county of Los Angeles, and have ever since resided there, and they then and there immediately began to live and cohabit together as such husband and wife, and continued so to do until the tenth day of August. 1897; said marriage has never been dissolved ; defendant denies the validity of said marriage and refuses to join in a declaration thereof. Defendant, by her guardian ad litem, admits the allegations of the complaint, and alleges that in having the ceremony performed as alleged plaintiff and defendant did so with the intent and for the purpose of evading the statutes of the State prescribing the manner in which marriages shall be contracted and solemnized. She prays that the said pretended marriage be declared illegal and void, and that plaintiff be precluded and estopped from ever setting up or asserting or claiming to be the husband of defendant. The court found all the allegations of the complaint and answer to be true, and as con- clusion of law found that plaintiff was not entitled to the relief claimed, but that the said pretended marriage was illegal and void, and judg- ment was entered accordingly. The appeal is from the judgment. The action is brought under section 78 of the Civil Code. It must be conceded that the question presented by this appeal is one of much importance, whether viewed in its relation to society or to the parties only. Appellant contends : 1. That the marriage is valid because per- formed upon the high seas ; and 2. That it would have been valid if performed within this State, because there is no law expressly declaring it to be void. Respondent presents the case upon two propositions, claiming: 1. That no valid marriage can be contracted in this State except in compliance with the prescribed forms of the laws of this State; and 2. That citizens and domiciled residents cannot go upon the high seas for the avowed purpose of evading the law of this State, and contract a valid marriage. Sections 722, 4082, and 4290 of the Revised Statutes of the United States are cited by appellant as recognizing marriages at sea and before foreign consuls, and that section 722 declares the common law as to marriage to be in force on the high seas on board American vessels. We have carefully examined the statutes referred to and do not find that they give the slightest support to appellant's claim. 46 NORMAN V. NORMAN. [(.'HAP. VI. The law of the sea, as it ma\* relate to the marriage of citizens of the United States domiciled in California, cannot be referred to the com- mon law of England any more than it can to the law of France or Spain or any other foreign country. We can find no law of Congress, and none has been pointed out by appellant, in which the general government has undertaken or assumed to legislate generally upon the subject of marriage on the sea. Nor, indeed, can we find in the grant of powers to the general government by the several States, as expressed in the national constitution, any provision bj r which Congress is em- powered to declare what shall constitute a valid marriage between citizens of the several States upon the sea, either within or without the conventional three-mile limit of the shore of any State ; and clearly does no such* power rest in Congress to regulate marriages on land except in the District of Columbia and the territories of the United States, or where it possesses the power of exclusive jurisdiction. We must look elsewhere than to the Acts of Congress for the law governing the case in hand. Section 63 of the Civil Code provides as follows : " All marriages without this State, which would be valid by the laws of the country in which the same were contracted, are valid in this State." The parties in the present case were residents of and domiciled in this State and went upon the high seas to be married with the avowed purpose of evading our laws relating to marriage. It seems to be well settled that the motive in the minds of the parties will not change the opera- tion of the rule. Chief Justice Gray, in Commonwealth v. Lane, 1 13 Mass. 458, 18 Am. Rep. 509, said : " A marriage which is prohibited here by statute, because contrary to the policy of our laws, is yet valid if celebrated elsewhere according to the law of the place, even if the parties are citizens and residents of this commonwealth, and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that such marriages out of the State shall have no validity here." This has been repeatedly affirmed by well-considered decisions. The authorities are found fully reviewed in that case, as they also will be found in support of the general rule in Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241, by the same learned jurist. See, also, as to marriages in evasion of the law of the domicil of the parties, Bishop on Marriage and Divorce, § 880 et seg. If the marriage in question can find support by the laws of any country having juris- diction of the parties at the place where the marriage ceremony was performed, we should feel constrained by our code rule and well-con- sidered decisions to declare it valid here, even though the parties were here domiciled at the time and went to the place where they attempted to be married for the purpose of evading our laws which they believed forbade the banns. But the parties did not go to any other State or country to be married. They went upon the high seas where no written law, of which we have any knowledge, existed by which mar- riage could be solemnized. The rule, therefore, that the law of the place must govern does not operate, been use there was no law of the SECT. III.] NORMAN V. NORMAN. 47 place unless we may hold that the law of the domicil applies. The question presented is res Integra, so far as we have been able to dis- cover ; and no case in England or the United States or elsewhere has been found by counsel (and their briefs disclose much research and industry) holding that the code rule supra applies to such a mar- riage as this. In the case of Holmes v. Holmes, 1 Abb. (U. S.) 525, the question was whether a marriage had been contracted under the laws of California or Oregon. It seems that the parties, who were domiciled in Oregon, met in San Francisco and there took passage on the steamer for Portland. It was at the trial suggested that the mar- riage might have taken place on board this vessel when on the high seas. There was no evidence that the parties ever met elsewhere except in California and Oregon. In the opinion by Heady, J., it was said, after showing that there was no valid marriage under the laws of either of these States: "Nor do I think that citizens of this State [Oregon], as the complainant and deceased were, can purposely go beyond its jurisdiction, and not within the jurisdiction of another State — as at sea — and there contract marriage contrary to its laws. Such an attempt to be joined in marriage is a fraudulent evasion of the laws to which the citizen of the State is subject and owes obedience, and ought not to be held valid by them." It is said by appellant that this expression of opinion is but dictum, inasmuch as the question did not necessarily arise. This may be true, but it commends itself to our judgment as wise and sound upon reason and principle. We rind no case holding that parties domiciled in a State may, for the avowed pur- pose of evading its laws, go where no law exists and there consummate marriage in violation of the laws of their domicil, and immediately return and claim a valid marriage. In all the cases where the statutes have been thus circumvented it was accomplished by a marriage valid in the place where celebrated. The Gretna Green marriages of Scot- land between citizens of England are notable examples, and they were upheld by the ecclesiastical courts. But- these marriages were solem- nized in accordance with the laws of Scotland, and therefore had legal sanction ; and so also marriages in this country of citizens of one State going into another to avoid some disqualification prescribed in the law of their domicil. It has been properly held that, as marriage is a natural right of which no government will allow its subjects, wherever abiding, to be deprived, if the parties happen to be sojourning in a foreign country, and under the local law there is no way by which they can enter into valid marriage, they may marry in their own forms and it will be recognized at home as good. Bishop on Marriage and Hi voice, § 890 et sea. But this author says: "In reason, for we have probably no adjudications of the question, a marriage; void by the law of the place of its celebration, in a case where such law provides no valid method, would not be made good by the ride we are considering if* the parties went there simply to avoid compliance with the law of their domicil. 48 NORMAN V. NORMAN. [CHAP. VI. There was no necessity ; for their own law was open to them at home, and it would not assist them in eluding its inhibitions." And he refers to the case of Holmes v. Holmes, sujyra, remarking : "It would, per- haps, be the same also where the resort was, for the like purpose, to an uninhabited region of the high seas." In the ease before us, the parties not only went where there was no law authorizing the marriage, but they went with the intention of immediately returning to their domicil where they supposed the law would not admit of their marriage, to enjoy the fruits of their contract. There was no necessity upon the parties to do this suddenly arising, or arising from unexpected surround- ing circumstances, but the circumstances were of their own creation and for a purpose to evade the law of their home. There is, we con- ceive, no ground of expediency, sound policy, or good morals upon which the transaction can be given legal sanction. In summing up the doctrine Mr. Bishop says (Bishop on Marriage and Divorce, § 920): "Therefore the rule necessarily is, that whenever a marriage is entered into, so that the laws of one country take cognizance of it, it will be accepted as a marriage in every other country also ; on the other hand, no forms matrimonial which come short of constituting valid marriage in the one countrv will so bring it within the cogni- zance of international law as to make it valid elsewhere." We think it results from considerations of reason and principle that unless it appears that this marriage was consummated under some recognized law the courts of this State should not declare it valid ; and we think the burden is upon appellant to show such a law, failing in which his suit must fail. The authorities are many to the point that the party who relies upon the foreign law, or law of another State, must prove the law by its production. Stewart's Marriage and Divorce, § 119, cases cited. Respondent cites the case of Crapo v. Kelly, 16 Wall. 610, where it was held that, in the case of an assignment in insolvency in the State of Massachusetts, it carried With it a vessel then in the Pacific Ocean ; and in an elaborate opinion it was shown that, except for the purposes and to the extent that certain attributes have been transferred to the United States by the several States of the Union, each possesses all the rights and powers of a sovereign State, and that the vessel in ques- tion was a part of the territory of the State of Massachusetts, although at the time in the Pacific Ocean, and that the laws of Massachusetts would govern the assignment. It is hence argued by respondent that the law of the domicil in the present case should govern. There is much force in this position, but we do not deem it necessary to place our decision on that ground. We think the law of the domicil of the parties must be the law by which to judge the validity or invalidity of this marriage upon the grounds already stated. We are thus brought to the only remaining question : Was the mar- riage valid tested b} - the laws of California? If this marriage can be upheld, it must be "non the sole ground that SECT. III.] NOKMAN V. NORMAN. 49 there was mutual consent, solemnization by a sea captain, and subse- quent cohabitation as husband and wife for the -space of eight days. What constituted marriage in this State, prior to the amendments of the code in 1895 and 1897, has been pretty well settled and need not be restated here. In the light of the history of past litigation, it ought not to be difficult to determine what is a valid marriage under existing law. Section 55 of the Civil Code, as amended in 1895, provided as follows: ''Marriage is a personal relation arising out of a civil con- tract, to which the consent of the parties capable of making that con- tract is necessary. Consent alone will not constitute marriage ; it must be followed by a solemnization authorized by this code." No particular form of solemnization is required, -'but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife." Civ. Code, § 71. Section 70 of the Civil Code provides as follows: "Marriage may be solemnized by either a justice of the Supreme Court, judge of the Superior Court, justice of the peace, priest, or minister of the gospel of any denomination." Prior to the amendment of 1895 the consent to marriage was required to be followed either by "a solemnization, or by a mutual assumption of marital rights, duties, or obligations." Civ. Code, § 55. The amendment added the words " authorized by this code" after the word " solemnization" and struck out the words above in italics. It seems to me that the intention of the legislature is plainly declared that consent must be followed by such solemnization as is authorized by the code or there can be no valid marriage ; and that this solemni- zation can only be performed by the persons mentioned in section 70, supra, for no other persons are so authorized. Prior to 1895 section 75 of the Civil Code provided for marriages by declaration without the solemnization required by section 70, but the act of March 26, 1895, swept away that easy process of marriage. Section 68 of the Civil Code was also amended in 1895 in an important particular. It now reads: "Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article ; but noncompliance with its pro- visions by other than the parties to a marriagt does not invalidate that marriage." The words in italics were added to the section as it formerly stood, and would seem to imply that, while there may be non- compliance with the law by parties other than those seeking marriage, there cannot be by the latter. Section 76 of the Civil Code now, as heretofore, makes provision for supplying the evidence of marriage where no record of the solemnization is known to exist; and a form of written declaration is prescribed. A new section, 79£, was added to the Civil Code in 1897, which provides that "the provisions of this chapter, so far as they relate to procuring licenses and the solemnizing of marriage, are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the marriage relation." . . . Section 69 of the Civil Code provides that: VOL. II. — 4 50 SIMONIN r. MALLAG. [CHAP. VI. '.' All persons about to be joined in marriage must first obtain a license therefor from the county clerk." ... In this case there was no license, there was no solemnization by any person authorized by law to perform the ceremony, there was no marriage under section 79J. To recognize such a marriage we think would grossly violate the spirit and letter of our statute and be a blot upon the civilization we profess. To give the law any just interpretation we must hold that, subject to the exception mentioned in section 79^, section 55 requires not only the consent of parties capable of making a contract of marriage, but that that consent must be followed by a solemnization authorized by the code, and this solemnization can only be performed by the persons named in section 70. We do not think it necessary to decide whether it is mandatory to obtain a license ; nor whether the minority of the defendant and want of consent of her parents or guardian would invalidate the mar- riage. Our conclusion rests upon the want of any authorized solemni- zation and would be the same if the parties were both of full age. We recommend that the judgment be affirmed. 1 SIMONIN v. MALLAC. Court for Divorce and Matrimonial Causes. 1860. [Reported 29 Law Journal, Probate, 97. 2 ] This was a petition by Valerie Josephine Wilhelmine Simonin (falsely called Mallac), for a decree of nullity of marriage. The peti- tioner, a Frenchwoman, was living, in 1853, in Paris with her mother ; she became acquainted with Leon Mallac, a Frenchman, who made an offer of marriage, which she accepted. In 1854 the parties came to London and were there married in due form. Leon Mallac was then of the age of twent}--nine years, and the petitioner twenty-two. The con- sent of Mallac's father had not been obtained. The marriage was not consummated, and the parties returned to Paris. Mallac afterwards refused to marry the petitioner in France. She then instituted before the Civil Tribunal of the Seine a suit to procure a decree of nullity of the pretended marriage. On December 1, 1854, a decree was made, of which the following is the substance. A marriage abroad between French subjects must be preceded by publication in France, according to Article 63 of the Code Napoleon ; and the provisions of Articles 144 and following must be complied with. If these formalities are omitted with the express intention of evading the law the marriage is to be pronounced null. The marriage i See Kent v. Burgess, 11 Sim. 361 ; R. v. Brampton, 10 East, 282; Culling v. Culling [1896], Prob. 116; Davis v. Davis, 1 Abb. N. C. 140; Phillips o. Gregg, 10 Watts, 158. — Ed. * 2 Sw. and Tr. 67, s. c. — Ed. SECT. III.] SIMON IN V. MALLAC. 51 in question was celebrated without the parties having obtained or sought the consent of their parents, and without having been preceded in France by the prescribed publication. The parties went to England only for the moment, and returned to France directly after the cere- mony ; and they acted thus with the formal intention of evading the prescriptions of the French law. The marriage has not been consum- mated. On these grounds the Tribunal declares the pretended mar- riage null. The important provisions of the Code Napoleon (Articles 148, 151— 154, 183) are as follows. Xo man under twenty-five and no woman under twenty-one can con- tract a valid marriage without the parents' consent. Persons who have passed these ages respectively must before marrying ask advice of their parents by an acte respectueux et formel. If the man is un- der thirty or the woman under twent\--five, this acte must be repeated each month for three months ; and at the end of the fourth month the marriage may take place. If the parties are above these ages respect- ively the acte need not be repeated, and the marriage may take place at the end of a month. Parents whose consent has not been asked cannot impeach a marriage after they have expressly or tacitby approved it. or after a year has passed since they knew of it. A party to the marriage cannot impeach it if a year has passed since he reached the age of full consent. The petitioner came to England in 1857 and has since that time resided here with no intention to return to France. 1 Dr. Phillimore and Dr. Sicabey, for the petitioner. We contend that the incapacit}* to contract a marriage follows the individual everv- where as a qualltas 2)erso?ialis ; and this view is upheld by a most important decision recently pronounced on the subject. [The Judge Ordinary. — The application of Brook v. Brook to this case is, that the marriage is void in France, not that it is void in Knbserving this law, no inconvenience can arise; but infinite mis- ehieTwill ensue if it is not." The same rule was recognized and made the ground of the judgment of Sir W. Wynne in Middleton v. danverin, 2 Hag. Cons. 137; nor is their reasoning weakened by the fact that certain exceptions out of that rule have been generally recognized, 56 SIMONIN V. MALL AC. [CHAP. VI. viz., where marriages deemed contrary to the law of religion and moralit}', and contrary to the settled polic}' of a nation, have been contracted abroad, and held void in the country of which the parties were domiciled subjects, and where such a marriage would not be allowed. It is very remarkable that neither in the writings of jurists, nor in the arguments of counsel, nor in the judgments delivered in courts of justice, is an}' case quoted or suggestion offered to establish the proposition that the tribunals of the country where a marriage has been solemnized in conformity with the laws of that country should hold it void, because the parties to the contract were the domiciled subjects of another country where such a marriage would not be allowed. No such argument has been advanced, even in the case of marriages deemed to be incestuous. There is a passage in Huber, Praelectiones Juris Civilis, lib. 1, tit. 3, ' De Conflictu Legum,' on this subject which ought to be noticed. After discussing contracts made in foreign countries, in section 8 he proceeds : •• Matrimonium pertinet etiam ad has regulas si licitum est eo loco ubi contractum et celebratum est ubique validum erit effectumque habebit sub eadem exceptione pre- judicii aliis non creandi ; cui licet addere si exempli nimis sit abomi- nandi ut si incestum juris gentium in secundo gradu contingent alicubi esse permissum quod vix est ut usu venire possit." And he proceeds to say, that if parties go to a country where such a marriage is tolerated, and celebrate it there, and return to their own country, it will not be recognized : " Quia sic jus nostrum pessimis exemplis eluderetnr eoque pertinet hasc observatio. Saepe fit ut adolescentes sub curatoribus agentes furtivos amores nuptiis conglutinare cupientes abeant in Frisiam Orientalem aliave loca in quibus curatorum consensus ad matrimonium non requiritur juxta leges Romanas, qua? apud nos hac parte cessant, celebrant ibi matrimonium et mox redeunt in patriam. Ego ita existimo banc rem manifesto pertinere ad eversionem juris nostri ; ac ideo non esse magistratus hie obligates e jure gentium ejus- modi nuptias agnoscere et ratas habere. Multoque magis statuendum est eos contra jus gentium facere videri qui civibus alieni imperii sua facilitate jus patriis legibus contrarium scientes volentes impertiuntu." Now this passage is remarkable. Huber discusses the two excep- tions out of the general rule that marriages good where celebrated, are, by the law of nations, to be acknowledged everywhere, incestuous marriages and marriages of minors without consent curatorum, cele- brated in countries whither they have gone for the purpose of evading the laws of the country of their domicil ; and he does not suggest the slightest doubt as to either class being held good in the country where solemnized ; but, with reference to the second class, vindicates the countrv of the domicil against the charge of violating the law of nations b} T refusing to recognize them. Story is, I believe, the only writer who has expressed an opinion on this point ; and he. after mentioning that France has ventured on the doctrine that the marriages of Frenchmen under such circumstances shall not be deemed valid, adds, " There can SECT. III.] SIMONIN V. MALLAC. 57 be little doubt that foreign countries where such marriages are cele- brated, will follow their own law, and disregard that of France." Conflict of Laws, § 90. The question appears to have occurred to Lord Meadowbank, a judge of great eminence ; for in the note of his opinion annexed to his interlocutor of remit, in the case of Gordon v. Nye, Ferg. Cons. Rep. 361, he puts this question, " Or would a marriage here be declared void because the parties were domiciled in England, and minors when the}- married here, and, of course, inca- pable by the law of that country of contracting marriage?" — plainly intimating his own opinion that they would not. In this country marriages have been solemnly recognized as valid, although celebrated in Scotland between English domiciled minors, without the consent required by the Marriage Act, 26 Geo. II., to which country they had resorted for the purpose of evading the operation of that act. I allude to the case of Compton v. Bearcroft. In a note to the report of Middleton v. Janverin, 2 Hag. Cons. 444, the libel in that case is set out, in which "the minority of the lady, the want of consent, the English domicil, and the Marriage Act were pleaded, and it was alleged that the parties were married in Dumfries merely to evade the laws of this country, and returned to England the same day." The prayer was, that the marriage might he declared null and void, pursuant to the said act for clandestine marriages. The libel was rejected. The court, therefore, must have held, that if all the matters alleged were proved they would not supply a ground for declaring the marriage null. It has been said that the parties did not in that case evade the Marriage Act, for that it contains an express exception of marriages solemnized in Scotland. It is true that marriages of minors in Scotland, without consent, are not prohibited by the Marriage Act, and therefore they cannot be said to be contrary to the law of England. But there can be no doubt that the parties went to Scotland to evade the operation of the law which was established in England. Compton v. Bearcroft is, therefore, an authority to this extent, that a marriage contracted by English domiciled subjects abroad, where it is not prohibited by English law, will not be held bad because the parties have gone thither to evade the necessity of complying with certain conditions that would have been imposed upon them in England. The French tribunal in this case appears to have held the marriage null and void, not because it was absolutely prohibited by the law of France, but because the parties contracted it in England with the formal intention of evading the prescriptions of the French law. Every nation has a right to impose on its own subjects restrictions and prohibitions as to entering into marriage contracts, either within or without its own territories; and if its subjects sustain hardships in consequence of those restrictions their own nation only must bear the blame. But what right lias one independent nation to call upon any other nation, equally independent, to surrender its own laws in order to o-ive effect to such restrictions and prohibitions? If there he :iny 58 SIMONIN V. MALLAC. [CHAP. VI. such right it must be found in the law of nations, that law " to which all nations have consented or to which the}' must be presumed to consent, for the common benefit and advantage." Which would be for the common benefit and advantage in such cases as the present, the observance of the law of the country where the marriage is celebrated, or of a foreign country? Parties contracting in any country are to be assumed to know, or to take the responsibility of not knowing, the law of that country. Now, the law of France is equally stringent whether both parties are French, or one only. Assume, then, that a French subject comes to England, and there marries without consent a subject of another foreign country, by the laws of which such a marriage would be valid, — which law is to prevail? To which country is an English tribunal to pay the compliment of adopting its law? As far as the law of nations is concerned, each must have an equal right to claim respect for its laws. Both cannot be observed. Would it not, then, be more just, and therefore more for the interest of all, that the law of that country should prevail which both are presumed to know, and to agree to be bound by? Again, assume that one of the parties is English, would not an English subject have as strong a claim to the benefit of English law as a foreigner to the benefit of foreign law? But it may be said that, in the case now before the court, both parties are French, and therefore no such difficulty can arise. That is true ; but if once the principle of surrendering our own law to that of a foreign country is recognized, it must be followed out to all its consequences. The cases put are, therefore, a fair test as to the possibility of maintaining that, by any comitas or jus gentium, this court is bound to adopt the law of France as its guide. Huber, indeed, in the passage cited, after vindicating the refusal to acknowledge a marriage solemnized abroad between parties who have gone there to evade the law of their own country, proceeds: " Multoque magis statuendum est eos contra jus gentium facere videri qui civibus alieni imperii sua facilitate jus patriis legibus contrarium scientes volentes impertiuntur." It is somewhat difficult to ascertain what Huber would require to be done by foreigners in order that they may be exempted from his reproach. He assumes that they are scientes. Is it intended that they are to inquire and ascertain whether the law of any foreign nation will be evaded if the proposed marriage is solemnized? Is the domicil of the parties and the law prevailing there to be investigated? Are the parties to be called upon to prove their ages, consent of certain relations or the non-existence of such relations, or that the}' have not come to this country to evade the laws of their own ? Are the clergy of this countiy to be deemed scientes that a foreign law is about to be evaded, unless the}' have proof to the contrary? Unless that proposition can be established the reproach of violating the law of nations cannot attach to this country if such marriages are here cele- brated. The great importance of having some one certain rule applicable to all cases — the difficult}', not to say impossibility, of SECT. III.] BKOOK V. BROOK. 59 having any rule applicable to all cases, save that the law of the country where the marriage is sclemnized, shall, in that country at least, decide whether it is valid or invalid — the absence of any judicial decision or dictum, or of even any opposite opinion of any writer of authority on the law of nations, have led us to the conclusion that we ought not to found our judgment in this case on any other rule than the law of England as prevailing amongst English subjects. France may make laws for her own subjects, and impose on them all the consequences, good or evil, that result from those laws ; but England also may make laws for the regulation of all matters within her own territory. Either nation may refuse to surrender its own laws to those of the other, and if either is' guilty of any breach of the corni- tas or jus gentium, that reproach should attach to the nation whose laws are least calculated to insure the common benefit and advantage of all. For these reasons we feel bound to dismiss this petition. It may be unfortunate for the petitioner that she should be held to be a wife in England and not so in France. If she had remained in her own country she might have enjoyed there the freedom conferred upon her by a French tribunal ; having elected England as her resi- dence, she must be contented to take English law as she finds it, and to be treated as bound by the contract which she there made. The novelty and importance of the question has cast upon the court much anxiety : but from some portion of it we are relieved by the consideration that if our judgment is wrong it may be corrected by the highest tribunal in this country. Petition dismissed. 1 BROOK v. BROOK. House of Lords. 1861. [Reported 9 House of Lords Cases, 193.] William Leigh Brook, of Meltham Hall, in the county of York, married in May, 1840, at the parish church of Huddersfield, in York- shire, Charlotte Armitage. There were two children of that marriage, Clara Jane Brook and James William Brook. In October, 1847, Mis. Brook died. On the 7th Juno, 1850, William Leigh Brook was duly, according to the laws of Denmark, married at the Lutheran church at Wandsbeck, near Altona, in Denmark, to Emily Armitage, the lawful sister of his deceased wife. At the time of this Danish marriage, Mr Brook and Miss Emily Armitage were lawfully domiciled in England, and had merely gone over t<> Denmark on a temporary visit. There were three children of this union. Charles Armitage Brook, Charlotte Amelia Brook, and Sarah Helen Brook. On the 1 7th September, 1855, i Arc. C v. Graham, l">7 Mmss 73. — En. 60 BROOK V. BROOK. [CHAP. VI. Mrs. Emily, the second wife of Mr. Brook, died at Frankfort of cholera, and two days afterwards Mr. Brook himself died of the same complaint at Cologne, leaving all the five children him surviving. Mr. Brook, in the early part of the day on which he died, executed a will by which he disposed of his property among his five children, and appointed his brother Charles Brook, and his two brothers-in-law, John and Edward Armitage, his executors and trustees. In consequence of the state of his property and of some pending purchases of land, and afterwards on account of the death of the infant Charles Armitage Brook, it became necessary to institute an administration suit, and a bill was filed for this purpose in March, 1856, which by order of the court was amended, and in July, 1856, a supplemental bill was filed, making the Attorney-General a party to the suit. The causes came on to be heard in March, 1857, before Vice- Chancellor Stuart, when certain inquiries were ordered, and in June, 1857, the chief clerk certified (among others) the facts above stated, and the certificate raised the question of the validity of the marriage at Wandsbeck. Evidence was taken on this subject, and several declarations were made by officials and by advocates in Holstein, that the marriage of a widower with the sister of his deceased wife was perfectly lawful and valid in Denmark to all intents and purposes whatever. The cause coming on for hearing, on further directions, Vice- Chancellor Stuart called in the assistance of Mr. Justice Creswell, who, on the 4th December, 1857, declared his opinion that the mar- riage at Wandsbeck was by the law of England invalid. Vice-Chan- cellor Stuart on the 17th April, 1858, pronounced judgment, fully adopting this opinion, and decreed accordingly. This appeal was then brought. 1 Lord Campbell, Lord Chancellor. My Lords, the question which your Lordships are called upon to consider upon the present appeal is, whether the marriage celebrated on the 9th June, 1850, in the duchy of Holstein, in the kingdom of Denmark, between William Leigh Brook, a widower, and Emily Armitage, the sister of his de- ceased wife, they being British subjects then domiciled in England, and contemplating England as their place of matrimonial residence, is to be considered valid in England, marriage between a widower and the sister of his deceased wife being permitted by the law of Denmark? I am of opinion that this depends upon the question whether such a marriage would have been held illegal, and might have been set aside in a suit commenced in England in the lifetime of the parties before the passing of statute 5&6 Win. IV. c. 54, commonly called Lord L3 - ndhurst's Act. I quite agree with what was said by my noble and learned friend during the argument on the Sussex peerage, that this act was not 1 Arguments of counsel are omitted. — Ed. SECT. III.] BROOK V. BROOK. 61 brought in to prohibit a man from marrying his former wife's sister. and that it does not render any marriage illegal in England which was not illegal before. The object of the second section was to remedy a defect in our procedure, according to which marriages illegal, as being within the prohibited degrees either of allinity or consan- guiuit}-, however contrary to law, human and divine, and however shocking to the universal feelings of Christians, could not be questioned after the death of either party. But no marriage that was before lawful was prohibited by the act ; and I am of opinion that no marriage can now be considered void under it, which, before the act, might not, in the lifetime of the parties, have been avoided and set aside as illegal. There can be no doubt that before Lord Lyndhurst's Act passed, a marriage between a widower and the sister of a deceased wife, if celebrated in England, was unlawful, and in the lifetime of the parties could have been annulled. Such a marriage was expressly prohibited by the Legislature of this country, and was prohibited expressly on the ground that it was " contrary to God's law." Sitting here, judicially, we are not at liberty to consider whether such a marriage is or is not " contrary to God's law," nor whether it is expedient or inexpedient. Before the Reformation the degrees of relationship by consanguinity and affinity, within which marriage was forbidden, were almost indefi- nitely multiplied ; but the prohibition might have been dispensed with bv the Pope, or those who represented him. At the Reformation, the prohibited degrees were confined within the limits supposed to be expressly defined by Holy Scripture, and all dispensations were abolished. The prohibited degrees were those within which inter- course between the sexes was supposed to be forbidden as incestuous, and no distinction was made between relationship by blood or by affinity. The marriage of a man with a sister of his deceased wife is expressly within this category. Hill v. Good, Vaugh. 302, and Reg. v. Chadwick, 11 Q. B. 173, 205, are solemn decisions that such a marriage was illegal ; and if celebrated in England such a marriage unquestionably would now be void. Indeed, this is not denied on the part of the appellants. They rest their case entirely upon the fact that the marriage was celebrated in a foreign country, where the marriage of a man with the sister of his deceased wife is permitted. There can be no doubt of the general rule, that " a foreign marriage, valid according to the law of a country where it is celebrated, is good everywhere." But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, anil in which the matrimonial residence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law 62 BROOK V. BROOK. [CHAP. VI. of the country of domicil, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicil, and it is declared void by that law, it is to be regarded as void in the country of domicil, though not contrar} 7 to the law of the country in which it was celebrated. This qualification upon the rule that " a marriage valid where cele- brated is good everywhere," is to be found in the writings of many eminent jurists who have discussed the subject. I will give one quotation from Huberus de Conflictu Legum, bk. 1, tit. 3, § 2 : " Rectores imperiorum id com iter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantisejusque civium praejudicetur." Then he gives "marriage" as the illustration: " Matrimonium per- tinet etiam ad has regulas. Si licitum est eo loco, ubi contrac- tum et celebratum est, ubique validum erit, effectumque habebit, sub eadem exceptione, prejudicii aliis non creandi ; cui licet addere, si exempli nimis sit abominandi ; ut si incestum juris gentium in secundo gradu contingeret alicubi esse permissum ; quod vix est ut usu venire possit." Id. § 8. The same great jurist observes: "Non ita praecise respiciendus est locus in quo contractus est initus, ut si partes alium in contrahendo locum respexerint, ille non potius sit considerandus. Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit. Proinde et locus matrimonii contracti non tarn is est, ubi contractus nuptialis initus est, quam in quo contrahentes matrimonium exercere voluerunt." Id. § 10. Mr. Justice Story, in his valuable treatise on the Conflict of Laws, while he admits it to be the "rule that a marriage valid where cele- brated is good everywhere," says, § 113 a, there are exceptions ; those of marriages involving polygamy and incest, those positively prohibited by the public law of a country from motives of policy, and those cele- brated in foreign countries by subjects entitling themselves, under special circumstances, to the benefit of the laws of their own country, he adds, § 114, "in respect to the first exception, that of marriages involving polygamy and incest, Christianit} 7 is understood to prohibit pobygamy and incest, and, therefore, no Christian country would recog- nize polyganry or incestuous marriages ; but when we speak of incestu- ous marriages care must be taken to confine the doctrine to such cases as by the general consent of all Christendom are deemed incestuous." The conclusion of this sentence was strongly relied upon by Sir Fitz- Roy Kelly, who alleged that many in England approve of marriage between a widower and the sister of his deceased wife ; and that such marriages are permitted in Protestant States on the Continent of Europe and in most of the States in America. Sitting here as a judge to declare and enforce the law of England as fixed by King, Lords, and Commons, the supreme power of this realm, I do not feel myself at liberty to form any private opinion of my own on the subject, or to inquire into what may be the opinion SECT. III.] BROOK V. BROOK. 63 of the majority of my fellow-citizens at home, or to try to find out the opinion of all Christendom. I can as a judge only look to what was the solemnly pronounced opinion of the legislature when the laws were passed which I am called upon to interpret. What means am I to resort to for the purpose of ascertaining the opinions of foreign nations? Is my interpretation of these laws to vary with the varia- tion of opinion in foreign countries? Change of opinion on any great question, at home or abroad, may be a good reason for the legisla- ture changing the law, but can be no reason for judges to vary then- interpretation of the law. Indeed, as Story allows marriages positively prohibited by the public law of a country, from motives of policy, to form an exception to the general rule as to the validity of marriage, he could hardly mean his qualification to apply to a country like England, in which the limits of marriages to be considered incestuous are exactly defined by public law. That the Parliament of England in framing the prohibited degrees within which marriages were forbidden, believed and intimated the opinion that all such marriages were incestuous and contrary to God's word I cannot doubt. All the degrees prohibited are brought into one category, and although marriages within those degrees may be more or less revolting, they are placed on the same footing, and before English tribunals, till the law is altered, they are to be treated alike. An attempt has been made to prove that a marriage between a man and the sister of his deceased wife is declared by Lord Lyndhurst's Act to be no longer incestuous. But the enactment relied upon applies equally to all marriages within the prohibited degrees of affinity, and on the same reasoning would give validity to a marriage between a step-father and his step-daughter, or a step-son and his step-mother, which would be little less revolting than a marriage between parties nearly related by blood. The general principles of jurisprudence which I have expounded have uniformly been acted upon by English tribunals. Thus, in the great case of Hill v. Good, Vaugh. 302, Lord Chief Justice Vaughan and his brother judges of the Court of Common Pleas, held, that " When an Act of Parliament declares a marriage to be against God's law, it must be admitted in all courts and proceedings of the kingdom to be so." In Harford v. Morris, 2 Hagg. Cons. 423, 434, the great judge who presided clearly indicates his opinion that marriages celebrated abroad are only to be held valid in England, if they are according to the law of the country where they are celebrated, and if they are not contrary to the law of England. He adds: "I do not say that foreign laws cannot be received in this court in cases where the courts of that country had a jurisdiction. But I deny the lexloci uni- versally to be a foundation for the jurisdiction, so as to impose an obligation upon the court to determine by those foreign laws." 64 BROOK V. BROOK. [CHAP. VI. I will only give another example, the case of Warrender v. War- render, 2 Clark & F. 488, in which I had the honor to be counsel at your Lordships' bar. Sir George Warrender, born and domiciled in Scotland, married an Englishwoman in England according to the rites and ceremonies of the Church of England ; but instead of changing his domicil, he meant that his matrimonial residence should be in Scotland, where he had large landed estates, on which his wife's jointure was charged. Having lived a short time in Scotland, they separated. Sir George, continuing domiciled in Scotland, commenced a suit against her in the Court of Session for a dissolution of the marriage on the ground of adulter}' alleged to have been committed by her on the continent of Europe. It was objected that this being a marriage celebrated in England, a country in which by the then existing law, marriage was indissoluble, the Scotch court had no jurisdiction to dissolve the marriage, and Lolly's case was relied upon. in which a domiciled Englishman having been married in England, and while still domiciled in England, having been divorced by decree of the Court of Session in Scotland, and having afterwards married a second wife in England, his first wife being still alive, he was con- victed of bigamy in England, and held by all the judges to have been rightly convicted, because the sentence of the Scotch court dissolving his first marriage was a nullity. But your Lordships unanimously held that as Sir George Warrender at the time of his marriage was a domi- ciled Scotchman, and Scotland was to be the conjugal residence of the married couple, although the law of England where the marriage was celebrated regulated the ceremonials of entering into the contract, the essentials of the contract were to be regulated by the law of Scotland, in which the husband was domiciled, and that although by the law of England marriage was indissoluble, yet as by the law of Scotland the tie of marriage might be judicially dissolved for the adultery of the wife, the suit was properly constituted, and the Court of Session had authority to dissolve the marriage. It is quite obvious that no civilized State can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country, to enter into a contract to be performed in the place of domicil if the contract is forbidden by the law of the place of domicil as contrary to religion, or moralit}-, or to any of its fundamental institutions. A marriage between a man and the sister of his deceased wife, being Danish subjects domiciled in Denmark, may be good all over the world, and this might likewise be so even if they were native-born English subjects, who had abandoned their English domicil, and were domiciled in Denmark. But I am by no means prepared to say that the marriage now in question ought to be, or would be, held valid in the Danish courts, proof being given that the parties were British subjects domiciled in England at the time of the marriage, that England was to be their matrimonial residence, and that by the law of England such a marriage is prohibited as being contrary to the law of SFXT. III.] BROOK V. BROOK. 65 God. The doctrine being established that the incidents of the contract of marriage celebrated in a foreign country are to be determined according to the law of the country in which the parties are domiciled and mean to reside, the consequence seems to follow that by this law must its validity or invalidity be determined. Sir FitzRoy Kelly argued that we could not hold this marriage to be invalid without being prepared to nullify the marriages of Danish subjects who contracted such a marriage in Denmark while domiciled in their native country, if they should come to reside in England. But on the principles which I have laid down, such marriages, if examined, would be held valid in all English courts, as they are according to the law of the country in which the parties were domiciled when the marriages were celebrated. I may here mention another argument of the same sort brought forward by Sir FitzRo\* Kelly, that our courts have no jurisdiction to examine the validity of marriages celebrated abroad according to the law of the country of celebration, because, as he says, the Ecclesiastical Courts, which had exclusive jurisdiction over marriage, must have treated them as valid. But I do not see anything to have prevented the Ecclesiastical Court from examining and deciding this question. Suppose in a probate suit the validity of a marriage had been denied, its validity must have been determined by the Ecclesiastical Court, according to the established principles of jurisprudence, whether it was celebrated at home or abroad. Sir FitzRoy Kelly further argued with great force, that both Sir Cresswell Cresswell and Vice-Chancellor Stuart have laid down that Lord Lyndhurst's Act binds all English subjects wherever they may be, and prevents the relation of husband and wife from subsisting between any subjects of the realm of England within the prohibited degrees. I am bound to say that in my opinion this is incorrect, and that Lord Lyndhurst's Act would not affect the law of marriage in any conquered colony in which a different law of marriage prevailed, what- ever effect it might have in any other colony. I again repeat that it was not meant by Lord Lyndhurst's Act to introduce any new prohi- bition of marriage in any part of the world. For this reason. I do not rely on the Sussex Peerage Case as an authority in point, although much reliance has been placed upon it; my opinion in this case does not rest on the notion of any personal incapacity to contract such a marriage being impressed by Lord Lyndhurst's Act on all Englishmen, and carried about with them all over the world : but on the ground of the marriage being prohibited in England as " contrary to God's Law." I will now examine the authorities relied upon by the counsel for the appellants. They bring forward nothing from the writings of jurists except the general rule, that contracts are to be construed according to the lex loci contractus, and the saying of Story with regard to a marriage being contrary to the precepts <>f the Christian religion, upon which I have already commented. VOL. II. — 6 66 BROOK V. BROOK. [CHAP. VK But there are various decisions which they bring forward as conclu- sive in their favor. They begin with Conipton v. Bearcroft, and the class of cases in which it was held that Gretna Green marriages were valid in England, notwithstanding Lord Hardwicke's Marriage Act, 26 Geo. II. c. 33. In observing upon them, I do not lay any stress on the proviso in this act that it should not extend to marriages in Scot- land or beyond the seas ; this being only an intimation of what might otherwise have been inferred, that its direct operation should be con- fined to England, and that marriages in Scotland and be}'ond the seas should continue to be viewed according to the law of Scotland and countries beyond the seas, as if the act had not passed. But I do lay very great stress on the consideration that Lord Hardwicke's Act only regulated banns and licenses, and the formalities by which the cere- mony of marriage shall be celebrated. It does not touch the essentials of the contract or prohibit any marriage which was before lawful, or render any marriage lawful which was before prohibited. The for- malities which it requires could only be observed in England, and the whole frame of it shows it was only territorial. The nullifying clauses about banns and licenses can on by apply to marriages celebrated in England. In this class of cases the contested marriage could on by be challenged for want of banns or license in the prescribed form. These formalities being observed, the marriages would all have been unim- peachable. But the marriage we have to decide upon has been declared by the Legislature to be " contrary to God's law," and on that ground it is absolutely prohibited. Here I may properly introduce the words of Mr. Justice Coleridge in Reg. v. Chadwick, 11 Q. B. 238, "We are not on this occasion inquiring what God's law or what the Levitical law is. If the Parliament of that da} r [Henry VIII.] legislated on a misinterpretation of God's law we are bound to act upon the statute which they have passed." The appellant's counsel next produced a new authority, the very learned and lucid judgment of Dr. Radcliff, in Steele v. Braddell, Milw. Eccl. 1. The Irish statute, 9 Geo. II. c. 11, enacts, " that all marriages and matrimonial contracts, when either of the parties is under the age of twenty-one, had without the consent of the father or guardian, shall be absolutely null and void to all intents and purposes ; and that it shall be lawful for the father or guardian to commence a suit in the proper Ecclesiastical Court in order to annul the marriage." A young gentleman, a native of Ireland, and domiciled there, went while a minor into Scotland, and there married a Scottish young lady without the consent of his father or guardian. A suit was brought by his guardian in an Ecclesiastical Court in Ireland, in which Dr. Radcliff presided, to annul the marriage on the ground that this statute created a personal incapacity in minors, subjects of Ireland, to contract mar- riage, in whatever country, without the consent of father or guardian, But the learned judge said, " I cannot find that any Act of Parliament such as this has ever been extended to cases not properly within it, SECT. III.] BROOK V. BROOK. 67 on the principle that parties endeavored to evade it." And after an elaborate view of the authorities upon the subject, he decided that both parties being of the age of consent, and the marriage being valid by the law of Scotland, it could not be impeached in the courts of the country in which the husband was domiciled, and he dismissed the suit. But this was a marriage between parties who, with the consent of parties and guardians, might have contracted a valid marriage accord- in"- to the law of the country of the husband's domicil, and the mode of celebrating the marriage was to be according to the law of the country in which it was celebrated. But if the union between these parties had been prohibited by the law of Ireland as " contrary to the word of God," undoubtedly the marriage would have been dissolved. Dr. Radcliff expressly says, " It cannot be disputed that every State has the right and the power to enact that every contract made by one or more of its subjects shall be judged of, and its validity decided, according to its own enactments and not according to the laws of the country wherein it was formed." Another new case was brought forward, decided very recently by Sir Cresswell Cresswell, Simonin v. Mallac, 29 Law J. N. S. Prob. 97. This was a petition by Valerie Simonin for a declaration of nullity of marriage. The petitioner alleged that a pretended ceremony of marriage was had between the petitioner and Leon Mallac of Paris, in the parish church of St. Martin's-in-the- Fields ; that about two days afterwards the parties returned to Paris, but did not cohabit, and the marriage was never consummated ; that the pretended marriage was in contradiction to and in evasion of the Code Napoleon ; that the parties were natives of and domiciled in France, and that subsequently to their return to France the Civil Tribunal of the Department of the Seine had, at the suit of Leon Mallac, declared the said pretended marriage to be null and void. Leon Mallac was served at Naples with a citation and a copy of the petition, but did not appear. Proof was given of the material allegations of the petition, and that the parties coming to London to avoid the French law, which required the consent of parents or guardians to their union, were married by license in the parish church of St. Martin's-in-the-Fields. Sir Cresswell Cresswell, after the case had been learnedly argued on both sides, discharged the petition. But was there anything here inconsistent with the opinion which the same learned judge delivered as assessor to Vice- Chancellor Stuart in Brook v. Brook? Nothing whatever; for the objection to the validity of the marriage in England was merely that the forms prescribed by the Code Napoleon for the celebration of a marriage in France had not been observed. But there was no law of France, where the parties were domiciled, forbidding a conjugal union between them ; and if the proper forms of celebration had been observed, this marriage by the law of France would have been unim- peachable. The case, therefore, comes into the same category as Compton v. Bearcroft and Steele v. Braddell, decided by Dr. Radcliff. 68 BROOK V. BROOK. [CHAP. VI. None of these cases can show the validity of a marriage which the law of the dornicil of the parties condemns as incestuous, and which could not, bv any forms or consents, have been rendered valid in the country in which the parties were domiciled. Some American decisions, cited on behalf of the appellants, remain to be noticed. In Greenwood v. Curtis, 6 Mass. 358, the general doctrine was acted upon that a contract, valid in a foreign State, may be enforced in a State in which it would not be valid, but with this important qualification, "unless the enforcing of it should hold out a bad example to the citizens of the State in which it is to be enforced." Now the Legislature of England, whether wisely or not, considers the marriage of a man with the sister of his deceased wife " contrary to God's law," and of bad example. Med way v. Needham, 16 Mass. 157, according to the marginal note, decides nothing which the counsel for the respondents need controvert. " A marriage which is good by the laws of the country where it is entered into, is valid in any other country ; and although it should appear that the parties went into another State to contract such marriage, with a view to evade the laws of their own country, the marriage in the foreign country will, nevertheless, be valid in the country in which the parties live ; but this principle will not extend to legalize incestuous marriages so contracted." This judgment was given in the year 1819. As in England, so in America, some very important social questions have arisen on cases respecting the settle- ment of the poor. Whether the inhabitants of the district of Medway, or the inhabitants of the district of Needham, were bound to maintain a pauper, depended upon the validity of a marriage between a mulatto and a white woman. They were residing in the province of Massa- chusetts at the time of the supposed marriage, which was prior to the year 1770. As the laws of the province at that time prohibited all such marriages, they went into the neighboring province of Rhode Island, and were there married according to the laws of that province. They then returned to Massachusetts. Chief Justice Parker held that the marriage was there to be considered valid, and. so far. the case is an authority for the appellants. But I cannot think that it is entitled to much weight, for the learned judge admitted that he was overruling the doctrine of Huberus and other eminent jurists ; he relied on deci- sions in which the forms only of celebrating the marriage in the country of celebration and in the country of dornicil were different ; and he took the distinction between cases where the absolute prohibition of the marriage is forbidden on mere motives of policy, and where the marriage is prohibited as being contrary to religion on the ground of incest. I myself must deny the distinction. If a marriage is abso- lutely prohibited in any country as being contrary to public policy, and leading to social evils, I think that the domiciled inhabitants of that country cannot be permitted, by passing the frontier and entering another State in which this marriage is not prohibited, to celebrate SECT. III.] BROOK V. BROOK. 69 a marriage forbidden by their own State, and immediately returning to their own State, to insist on their marriage being recognized as lawful. Indeed Chief Justice Parker expressly allowed that his doc- trine would not extend to cases in which the prohibition was grounded on religious considerations, saying, " If without any restriction, then it might be that incestuous marriages might be contracted, between citizens of a State where the}* were held unlawful and void, in countries where they were prohibited." The only remaining case is Sutton v. Warren, 10 Met. 451. The decision iu this case was pronounced in 1845. I am sorry to say, that it rather detracts from the high respect with which I have been in the habit of regarding American decisions resting upon general jurispru- dence. The question was, whether a marriage celebrated in England on the 24th of November, 1834, between Samuel Sutton and Ann Hills, was to be held to be a valid marriage in the State of Massa- chusetts. The parties stood to each other in the relation of aunt and nephew, Ann Hills being own sister of the mother of Samuel Sutton. They were both natives of England, and domiciled in England at the time of their marriage. About a year after their marriage they went to America, and resided as man and wife in the State of Massachusetts. By the law of that State a marriage between an aunt and her nephew is prohibited, and is declared null and void. Nevertheless, the Supreme Court of Massachusetts held that this was to be considered a valid marriage in Massachusetts. But I am bound to say that the decision proceeded on a total misapprehension of the law of England. Justice Hubbard, who delivered the judgment of the court, considered that such a marriage was not contrary to the law of England. Now there can be no doubt that although contracted before the passing of 5 & 6 Wm. IV. c. 54, it was contrary to the law of England, and might have been set aside as incestuous, and that act gave no protection what- soever to a marriage within the prohibited degrees of consanguinity ; so that if Samuel Sutton and Ann Hills were now to return to England, their marriage might still be declared null and void, and they might be proceeded against for incest. If this case is to be considered well decided and an authority to be followed, a marriage contrary to the law of the State in which it was celebrated, and in which the parties were domiciled, is to be held valid in another State into which they emigrate, although by the law of this State, as well as of the State of celebration and domicil, such a marriage is prohibited and declared to be null and void. This decisions, my Lords, may alarm us at the consequences which might follow from adopting foreign notions on such subjects, rather than adhering to the principles which have guided us and our fathers ever since the Reformation. I have now, my Lords, as carefully as I could, considered and touched upon the arguments and authorities brought forward on behalf of the appellants, and I must say that they seem to me quite insuffi- cient to show that the decree appealed against is erroneous. 70 BROOK V. BROOK. [CHAP. VI. The law upon this subject may be changed by the legislature, but I am bound to declare that in my opinion, by the existing law of Eng- land this marriage is invalid. It is therefore my duty to advise your Lordships to affirm the decree, and dismiss the appeal. Lord Cranworth. 1 There can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects, to declare who vaa,y marry, how they may marry, and what shall be the legal consequences of their marrying. And if the mar- riages of all its subjects were contracted within its own boundaries no such difficulties as that which has arisen in the present case could exist. But that is not the case ; the intercourse of the people of all Christian countries among one another is so constant, and the number of the subjects of one country living in or passing through another is so great, that the marriage of the subject of one country within the territories of another must be matter of frequent occurrence. So, again, if the laws of all countries were the same as to who might marry, and what should constitute marriage, there would be no difficulty ; but that is not the case, and hence it becomes necessary for every country to determine by what rule it will be guided in deciding on the validity of a marriage entered into beyond the area over which the authority of its own laws extends. The rule in this country, and I believe generally in all countries, is, that the marriage, if good in the counUy where it was contracted, is good everywhere, subject, however, to some qualifica- tions, one of them being that the marriage is not a marriage prohibited by the laws of the country to which the parties contracting matrimony belong. The real question, therefore, is, whether the law of this country, by which the marriage now under consideration would certainly have been void if celebrated in England, extends to English subjects casually being in Denmark? I think it does. . . . Assuming, then, as we must, that such marriages are not only pro- hibited by our law, but prohibited because the}' are contrary to the law of God, are we to understand the law as prohibiting them wheresoever celebrated, or only if they are celebrated in England? I cannot hesi- tate in the answer I must give to such an inquiry. The law, consider- ing the ground on which it makes the prohibition, must have intended to give to it the widest possible operation. If such unions are declared by our law to be contrar}' to the laws of God, then persons having entered into them, and coming into this country, would, in the eye of our law, be living in a state of incestuous intercourse. It is impossible to believe that the law could have intended this. It was contended that, according to the argument of the respondent, such a marriage, even between two Danes, celebrated in Denmark, must be contrary to the law of God, and that, therefore, if the parties to it were to come to this country, we must consider them as living in 1 Part of each of the following opinions is omitted. — Ed. SECT. III.] BROOK V. BROOK. 71 incestuous intercourse, and that if any question were to arise here as to the succession to their property, we must hold the issue of the second marriage to be illegitimate. But this is not so. We do not hold the marriage to be void because it is contrary to the law of God, but because our law has prohibited it on the ground of its being contrary to God's law. It is our law which makes the marriage void, and not the law of God. And our law does not affect to interfere with or regulate the marriages of any but those who are subject to its jurisdiction. Lord St. Leonards. I consider this as purely an English question. It depends wholly upon our own laws, binding upon all the Queen's subjects. ... I am clearly of opinion that this marriage was rendered void by the Act of Will. IV. Lord Wensleydale. Both the judges in the court below form their judgment, first, on the ground of the illegality of such a marriage in England, prohibited from very early times by the legislature, and finally by Lord Lyndhurst's Act, 5 & 6 Will. IV. c. 54 ; secondly, on the ground that that act itself is to be considered as a personal act, in effect prohibiting all British born subjects, in whatever part of the world they might happen to be, from contracting such marriages, and declaring those marriages to be absolutely void. . . . It is unnecessary to enter into the discussion of this part of the case, if the other ground is satisfactory, which I think it is. But as at present advised, I dissent upon this point from my noble and learned friend who has just addressed your Lordships. I think the construc- tion put upon this as a personal act is wrong. I do not think the purpose of the statute was to put an end to such marriages by British subjects in any part of the world. Its object was only to make abso- lutely void thereafter all marriages in this realm between persons within the prohibited degrees of consanguinity or affinity which were previously voidable, that is, which were really void according to our law, though they could be avoided only by a suit in the Ecclesiastical Court, and that could be done only during the life of both the married parties. It is the established principle that every marriage is to be universally recognized, which is valid according to the law of the place where it was had, whatever that law may be. . . . But this universally approved rule is subject to a qualification. Iluber, in his first book, tit. 3, art. 8, says: " Matrimonium si licitumest eo loco ubi contractum et celebratum est, ubique validum erit, effectumque habebit, sub eadem exceptione, prejudicii aliis non creandi ; cui licet addere, si exempli nirnis sit abominandi ; ut si incestum juris gentium in secundo gradu contingeret alicubi esse permissum ; quod vix est ut usu venire possit." A similar qualification is introduced by Story, Conll. of L. §§ 113 <<, 114. He states, that the most prominent, if not the only, known exceptions to the rule, arc, first, those marriages involving polygamy and incest; second, those positively prohibited by the public law of 72 SOTTOMAYOll V. DE BAREOS. [CHAP. VI. a country from motives of policy, and a third having no bearing upon the question before us. The statute law of the country, which is binding on all its subjects, . . . must be considered as pronouncing that this marriage is a violation of the Divine law, and therefore that it is void within the first exception made by Mr. Justice Story, and within the principle of the exception laid down by Huber. If our laws are binding, or oblige us, as I think they do, to treat this marriage as a violation of the com- mands of God in Holy Scripture, we must consider it in a court of justice as prejudicial to our social interest and of hateful example. But if not, it most clearly falls within the second exception stated by Story, which alone, I think, need be considered, as it is clearly illegal by the law of this country whether it be considered incestuous or not, and a violation of that law. I do not, therefore, in the least doubt that before the 5 & 6 Wm. IV. it would have been pronounced void by the Ecclesiastical Court on a suit instituted during the life of both parties. And therefore I advise your Lordships that the judgment should be affirmed. Order appealed against affirmed, and appeal dismissed with costs. 1 SOTTOMAYOR v. DE BARROS. Court of Appeal. 1877. [Reported 3 Probate Division, 1.] Cotton, L. J. This is an appeal from an order of the Court of Divorce, dated the 17th of March, 1877, dismissing a petition pre- sented by Ignacia Sottomayor, praying the court to declare her mar- riage with the respondent Gonzalo de Barros to be null and void. The respondent appeared to the petition, but did not file an answer or appear at the hearing ; and by direction of the judge, the Queen's proctor was served with the petition, and appeared by counsel to argue the case against the petition. There were several grounds on which the petitioner originally claimed relief, but the only ground now to be considered is that she and the respondent were under a personal incapacity to contract marriage. The facts are these : The petitioner and respondent are Portuguese subjects, and are and have always been domiciled in that country, where they both now reside. They are first cousins, and it was proved that by the law of Portugal first cousins are incapable of con- tracting marriage by reason of consanguinity, and that an}- marriage between parties so related is by the law of Portugal held to be in- cestuous and therefore null and void ; but though not proved, it was l Contra, Danelli v. Danelli, 4 Bush, 51 ; Sutton v. Warren, 10 Met. 451. —Ed. SECT. III.] SOTTOMAYOR V. DE BARKOS. 73 admitted before us that such a marriage would be valid if solemnized under the authority of a papal dispensation. In the year 1858 the petitioner, her father and mother, and her uncle, De Barros, and his family, including the respondent, his eldest son, came to England, and the two families occupied a house jointly in Dorset Square, London. The petitioner's father came to this coun- try for the benefit of his health, and De Barros for the education of his children and to superintend the sale of wine. De Barros subse- quently, in 1861, became manager to a firm of wine merchants in London, carrying on business under the style of Caldos Brothers & Co., of which the petitioner's father was made a partner, and which stopped payment in 1865. On the 21st of June, 1866, the petitioner, at that time of the age of fourteen years and a half, and the respond- ent, of the age of sixteen years, were married at a registrar's office in London. No religious ceremony accompanied or followed the mar- riage, and although the parties lived together in the same house until the year 1872, they never slept together, and the marriage was never consummated. The petitioner stated that she went through the form of marriage contrary to her own inclination, by the persuasion of her uncle and mother, on the representation that it would be the means of preserving her father's Portuguese property from the consequences of the bankruptcy of the wine business. Under these circumstances the petitioner, in November, 1874, pre- sented her petition for the object above mentioned, and Sir R. Philli- more, before whom the case was heard, declined to declare the marriage invalid and dismissed the petition, but did so, as we understand, rather because he felt himself bound by the decision in the case of Simonin v. Mallac, 2 Sw. & Tr. 67; 29 ~L. J. (P. M. & A.) 97, than because he considered that on principle the marriage ought to be held good. If the parties had been subjects of Her Majesty domiciled in England, the marriage would undoubtedly have been valid. But it is a well-recognized principle of law that the question of personal capac- ity to enter into any contract is to be decided by the law of domicil. It is, however, urged that this does not apply to the contract of mar- riage, and that a marriage valid according to the law of the country where it is solemnized is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted ; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil ; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage, and stamp a marriage between persons within the prohibited degrees as incestuous, this, in our opinion, im- poses on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between | 74 SOTTOMAYOR V. DE BARROS. [CHAP. VI. persons both at the time of their marriage subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnized. In argument several passages in Story's Conflict of Laws were referred to, in support of the contention that in an English court a marriage between persons who b}- our law may lawfully intermarry ought not to be declared void, though declared incestuous by the law of the parties' domicil, unless the marriage is one which the general consent of Christendom stamps as incestuous. It is hardly possible to suppose that the law of England, or of any Christian countiy, would consider as valid a marriage which the general consent of Christendom declared to be incestuous. Probablv the true explanation of the passages in Story is given in Brook v. Brook, 9 H. L. C. 103, at pp. 227, 241, by Lord Cranworth and by Lord "Wensleydale, who express their opinions that he is referring to marriages not prohibited or declared to be incestuous b} 7 the municipal law of the country of domicil. But it is said that the impediment imposed by the law of Portugal can. be removed by a Papal dispensation, and, therefore, that it cannot be said there is a personal incapacity of the petitioner and respondent to contract marriage. The evidence is clear that by the law of Portu- gal the impediment to the marriage between the parties is such that, in the absence of Papal dispensation, the marriage would be b}' the law of that countiy void as incestuous. The statutes of the English Parliament contain a declaration that no Papal dispensation can sanction a marriage otherwise incestuous ; but the law of Portugal does recognize the validity of such a dispensation, and it cannot in our opinion be held that such a dispensation is a matter of form affecting only the sufflcienc}* of the ceremom' b}' which the marriage is effected, or that the law of Portugal, which prohibits and declares incestuous, unless with such a dispensation, a marriage between the petitioner and respondent, does not impose on them a personal in- capacity to contract marriage. It is proved that the courts of Portu- gal, where the petitioner and respondent are domiciled and resident, would hold the marriage void, as solemnized between parties incapable of marrying, and incestuous. How can the courts of this country hold the contrary, and, if appealed to, say the marriage is valid? It was pressed upon us in argument that a decision in favor of the petitioner would lead to many difficulties, if questions should arise as to the validity of a marriage between an English subject and a foreigner, in consequence of prohibitions imposed by the law of the domicil of the latter. Our opinion on this appeal is confined to the case where both the contracting parties are, at the time of their mar- riage, domiciled in a country the laws of which prohibit their marriage. All persons are legally bound to take notice of the laws of the country where they are domiciled. No country is bound to recognize the laws of a foreign state when they work injustice to its own subjects, and this principle would prevent the judgment in the present case being SECT. III.] SOTTOMAYOR V. DE BARROS. 75 relied on as an authority for setting aside a marriage between a foreigner and an English subject domiciled in England, on the ground of any personal incapacity not recognized by the law of this country. The counsel for the petitioner relied on the case of Brook r. Brook, as a decision in his favor. If, in our opinion, that case had been a decision on the question arising on this petition, we should have thought it sufficient without more to refer to that case as decisive. The judgment in that case, however, only decided that the English courts must hold invalid a marriage between two English subjects domiciled in this country, who were prohibited from intermarrying by an English statute, even though the marriage was solemnized during a temporaiT sojourn in a foreign country. It is, therefore, not decisive of the present case ; but the reasons given by the Lords who delivered their opinions in that case strongly support the principle on which this judgment is based. It only remains to consider the case of Simonin v. Mallac. The objection to the validity of the marriage in that case, which was solemnized in England, was the want of the consent of parents required by the law of France, but not under the circumstances by that of this country. In our opinion, this consent must be considered a part of the ceremony of marriage, and not a matter affecting the personal capacity of the parties to contract marriage ; and the decision in Simonin v. Mallac does not, we think, govern the present case. "We are of opinion that the judgment appealed from must be reversed, and a decree made declaring the marriage null and void. Judgment reversed. 1 1 The case having been sent down to the Probate Division of the High Court, Sir James Hennkn, President, found that though the petitioner was domiciled in Portugal at the time of the marriage, the respondent was domiciled in England at that time ; and he held the marriage valid. In the course of his opinion he said : "The Lord Justices appear to have laid down as a principle of law a proposition which was much wider in its terms than was necessary for the determination of the case before them. It is thus expressed : ' It is a well recognized principle of law that the question of personal incapacity to enter into any contract is to he derided by the law of domicil ; ' and again, 'As in oilier contracts, so in that of marriage, personal capacity must depend on the law of domicil' It is of course competent for the Court of Appeal to lay down a principle which, if it formed the basis of a judgment of that court, must, unless it should be disclaimed by the House of Lords, be binding in all future cases. Put I trust that I may be permitted without disrespect to say that. the doctrine thus laid down has not hitherto been 'well recognized.' On the con- trary, it appears to me to be a novel principle, for which up to the present time there has been no English authority. What authority there is seems to me to be the other way."— Ed. 76 WAKTER V. WARTER. [CHAP. VI. WARTER v. WARTER. High Court of Justice, Probate Division. 1890. [Reported 15 Probate Division, 152.] Sir James Hannen, President. The plaintiff claims probate of a will l dated February 6, 1880, made by her father, Henry De Grey Warter, who died on March 23, 1889. The defendant, the son of Henry De Grey Warter, alleges that the will, dated February 6, 1880, was revoked by the subsequent marriage of the testator with Annette Louisa Tayloe on April 2, 1881. The question in the cause is whether the marriage celebrated on April 2, 1881, was the marriage of the parties — that is, whether they had not concluded a valid marriage before the execution of the will — namely, on February 3, 1880. The material facts are as follows: The mother of the plaintiff and defendant was formerly the wife of John Edward Tayloe, and was resident with him in India. In 1879 Henry De Grey Warter, the de- ceased in this cause, was a major in the Royal Artillery, stationed in India. In 1879 John Edward Tayloe, being so resident, instituted proceedings in the High Court of Judicature at Fort William in Bengal for the dissolution of his marriage on the ground of his wife's adultery with Major De Grey Warter, and a decree nisi was pronounced on May 19, 1879. This decree was made absolute on November 27, 1879. By the Indian Divorce Act of 1869,* jurisdiction is given to dissolve the marriage when the petitioner professes the Christian re- ligion and resides in India at the time of presenting the petition — that is, though he or she may not be domiciled there. On the insti- tution of the proceedings Mrs. Tayloe returned to England. Major De Grey Warter afterwards joined her in England, and went through a ceremony of marriage on February 3, 1880. At the time of the marriage Major De Grey Warter was domiciled in England. By the Indian Divorce Act — Act No. 4 of 1869 — under which the pro- ceedings were taken, it is enacted that tk when six months after the date of any decree of the High Court dissolving a marriage have ex- pired, and no appeal has been presented against such decree to the High Court in its appellate jurisdiction, but not sooner, it shall be lawful for the respective parties to the marriage to many again as if the prior marriage had been dissolved by death." The marriage in question in this case took place within three months of the decree. It was contended that as this marriage was celebrated in England the parties were freed from the restraint imposed by the Indian Bivorce Act. I am of opinion that that is not the case. Mrs. Tayloe was subject to the Indian law of divorce, and she could only contract a valid second marriage by showing that the incapacity arising from her 1 Bv the terms of his will Colonel Warter left all his property to his " reputed wife." — Ed. SECT. III.] WALL V. WILLIAMSON. 77 previous marriage had been effectually removed by the proceedings taken under that law. This could not be done, as the Indian law, like our own, does not completely dissolve the tie of marriage until the lapse of a specified time after the decree. This is an integral part of the proceedings by which alone both the parties can be released from their incapacity to contract a fresh marriage. The case of Scott v. Attorney-General, 11 P. D. 128, was relied on for the plaintiff. I there held that a colonial law prohibiting the marriage of the guilt}' party, so long as the other remained unmarried, did not operate as a bar to marriage where the guilty party had acquired a domicil in this country. The distinction between that case and the present is that there the incapacity to remarry imposed b} r the colonial law only at- tached to the guilty party. It was, therefore, penal in its character, and as such was inoperative out of the jurisdiction under which it was inflicted. A case to the same effect, and based on the same principle, was cited from an American report : Ponsford v. Johnson, 2 Blatchf. 51. For these reasons I am of opinion that the marriage of Febru- ary 3, 1880, was invalid, and consequently that the will of February 6, 1880, was revoked by the valid marriage celebrated on April 2, 1881. * WALL v. WILLIAMSON. Supreme Court of Alabama. 1845. [Reported, 8 Alabama, 48.] Assumpsit, by Williamson, against the defendant, as the maker of a promissory note. At the trial, upon the general issue, the defendant produced evidence tending to prove, that she and one David Wall lived together, as man and wife, from the year 1831 until the year 1839, in the territor}' belonging to the Choctaw Indians, until that was annexed to, and made the count}' of Sumter ; after which the\ T lived in the same relation, in that county, near the same place where the}' previously had resided, and until the said David left the State of Alabama, in 1839, and went to the Choctaw country, west of the Mississippi. Both were of Indian extraction, and of the Choctaw tribe ; that they were regarded as man and wife by the tribe, and as having been properly married, according to the laws and customs of the Choctaws. The defendant had said, that she had been advised that she had not been legally mar- ried ; that she had been married in the Choctaw territory, by one Pistole, a justice of the peace from Marengo County. It was also in proof, that by the laws and customs of the Choctaws, the husband, by his marriage, takes no part of his wife's property ; that among them, a man takes a wife at pleasure, and dissolves the marri.-u, r o whenever he pleases, and that the men are allowed a plurality of wives. 1 Ace. McLennan v. McLennan, 13 Or. 480, 50 Pac, 802. — Ed. 78 WALL V. WILLIAMSON. [CHAP. VI. Upon this state of proof, the defendant requested the court to instruct the jury, that a marriage under the laws and customs of the Choctavvs, entered into in a place where such laws and customs are in force, is recognized as a valid marriage by the laws of Alabama, when the same are extended over the territory where the parties so married reside. This was refused, and the court charged the jury — 1. That the living together of an Indian man and woman would not be regarded by the laws of this State, as such a marriage as would affect a contract entered into by the female. 2. That if the defendant was abandoned by Wall, and she executed the note after he had left her, that she would bo bound by her contract, although she might have been married. 3. That if, according to the customs among the Choctaws, the parties to a marriage can dissolve it at pleasure, by mere separation, and that the defendant and Wall did so separate, then the defendant was liable on her contract, as a feme sole. The defendant excepted to the refusal of the court to give the charge requested, as well as to those given, and error is assigned upon the bill of exceptions. Goldthwaite, J. Previous to entering upon the consideration of the questions raised, by the refusal to give the charge requested by the defendant, it is not improper to ascertain what facts had to be ascer- tained by the jury, from the evidence. The existence of a marriage between David Wall and the defendant, at the time when the note sued on was given by Mrs. Wall, was one of the principal matters to be passed upon. Once established, to the satisfaction of the jury, as hav- ing been entered into, in conformity with the usages of the Choctaw tribe of Indians, its effect, in connection with the laws of this State, became a very material subject of inquiry. The defendant insisted then, and now, that if this marriage was valid, by the laws and usages of the Choctaw tribe of Indians, it is recognized as valid by the laws of Alabama. The validity of the marriage, and not the consequences of it, as to the defendant, was, at that time, the subject for instruction. If the marriage is not to be recognized as valid by our law, it was of no consequence to the defendant what further charge was given for or against her, because her entire defence rested on sustaining that propo- sition. All the testimony in relation to rights of husband and wife under the Choctaw law may have been of a disputable or doubtful nature. These observations are called for because it has been assumed that this charge was immaterial, and that all the case is covered by the charge actually given by the court. 1. With respect to the refusal of this charge, it is not unlikely that the Circuit Court intended to be understood by the counsel that the charge was refused, not as an incorrect proposition, but for the reason that the case was clear for the plaintiff, even if it was conceded. If such was the impression of the court, the charge should have been given, with the necessary explanation to direct the jury to the consid- eration of those points deemed to be more material. The general rule SECT. III.] WALL V. WILLIAMSON. 79 upon this subject is, that a marriage valid at the place where contracted is deemed to be valid eveiywhere else. Story, Confl. of Laws, §§ 77. 79, 103, 113 a. It is said by the same author that the most promi- nent, if not the only exceptions to this rule, are those marriages involving polygamy and incest. lb. § 113 a, 114. These, the learned author says, Christianity is understood to prohibit, and therefore no Christian country would recognize polygamous or incestuous marriages. Lord Brougham, in Warrender v. Warrender, (cited in a note to § 114, 9 Bligh. 112,) says, "It is important to observe that we regard it (marriage) as a wholly different thing, a different status, from Turkish or other marriages among infidel nations; because we clearly never should recognize the plurality of wives, and •consequent validity of second marriages, standing the first, which second marriages the laws of those countries authorize and validate." If this doctrine is to be understood as leading to the conclusion that a court can collaterally inquire into the existence of such a relationship as would, in a direct proceeding, annul the marriage, it is very questionable whether it is sustainable. 1 Black. Com. 434. A parallel case to a Turkish or other marriage in an infidel country will probably be found among all our savage tribes, but can it be possible that the children must be illegitimate if born of the second or other succeeding wife? However the true rule may be, it is immaterial to this case, unless it . 100 DE BAUFFKEMONT V. DE BAUFFREMONT. [CHAP. VI. and against the provisions of the law of France. Supposing this foreign naturalization possible, the effect of it would be immediately annulled by the marriage, still existing, which would impose her husband's nationality on her ; she would therefore have changed her nationality only to regain at the same moment (at least in the view of the law of France, by which we are governed) that which she had vainly tried to shake off. If the act of naturalization in question should be regarded as an act of public law which a foreign State, making use of its sovereign rights, is free to accomplish, independently of marital authorization, we must at the same time recognize that the question relative to the personal capacity of the woman, as a married woman, to contract a second marriage before the dissolution of the first, is put beyond the power of her domicil to affect it. No effect can be made on the prior rights of the husband, a third party, by this act of naturalization; which consequently cannot be set up against him, no matter what its regularity and force, by the law of the foreign State, may be in other respects. The French courts cannot consider, either to declare the act valid or null, the reasons of reciprocal respect due between the two sovereignties. It matters little, in fact, whether this naturalization could regularly take effect either with or without the husband's consent. Even if he had given express authority to his wife, she could not be permitted to invoke the law of the State where she had obtained her new nationality, to avoid the application of the French law, which alone governs the effect of the marriage of its subjects, and declares the tie indissoluble. It is a question of the most solemn and important of contracts, which not only cannot be broken against the will of one of the contracting parties, but never even by the mutual consent of the spouses. The Princess de Bauffremont would vainly have acquired by her own will a foreign nationality; her husband, remaining French, would vainly have given her express authority to do so. The recipro- cal character and the indissoluble tie of marriage prevent in both cases that either the wife alone or even both spouses together (which is not the case here) should elude the provisions of public order of the French law which governs them. For these reasons, the judgment appealed from is amended so far as it declared null the act of naturalization of May 3, 1875, which should only be declared incapable of being set up against the husband ; in other respects the judgment is confirmed. Mme. de Bauffremont appealed. The Court. . . . The judgment appealed from was not called upon to decide, and did not decide, upon the regularity and legal force, in Germany and according to German law, of these acts done at the sole will of the appellant. Taking only the point of view of the French law, which in fact determines the question and is binding on the SECT. III.] PRINCE FREDERICK V. PRINCESS LUDWIG. 101 parties, it decided that even had she been authorized by her husband, the appellant could not invoke the law of the State where she had obtained a new nationality, by favor of which, transformed from her condition of woman separated from her husband to that of one divorced, she could elude the French law, which alone governs the effect of the marriage of French subjects and declares the tie indissoluble. Adopting the findings of the judges of first instance, it has also recited that the appellant solicited and obtained this new nationality not to exercise the rights and fulfil the duties which would be hers in establishing her domicil in the State of Saxe-Altenburg, but with the sole purpose of escaping the prohibitions of the French law by con- tracting a second marriage, and then abandoning the new nationality as soon as it had been acquired. In deciding in these circumstances that acts thus done in fraud of the French law and in despite of obligations previously contracted in France could not be set up against the Prince de Bauffremont, the judgment appealed from was given in conformity to the principles of the French law on the indissolubility of marriage, and violated no provisions of law as alleged by the appeal. Appeal dismissed. PRINCE FREDERICK OF SAYN-WITTGENSTEIN-SAYN v. PRINCESS LUDWIG. Reichsgericht. 1880. [Reported 2 Entscheidungen dv.s Reichsgerichts, Civilsachen, 145.] Prince Lcdwig of Sayn-Wittgenstein-Sayn married in the year 1867 Maria Lilienthal, daughter of the banker Lilienthal of Berlin. The marriage was celebrated on December 6, 1867, at Versoix, in the Canton of Geneva, by a civil act, followed in France by a religious marriage. After the death of Prince Ludwig without issue, in 1876, Prince Frederick, his brut her, brought this action against the widow in the court at Ebrenbreitstein, praying that the defendant might be enjoined from any longer bearing the title of Princess Sayn-Wittgen- stein-Sayn, and from using the coat of arms of the princely family of Wittgenstein. The plaintiff based his case on the ground that his brother and himself belonged to the high nobility, and to the Prussian peerage, while the defendant was of the lower burgher class ; the marriage of his deceased brother with her was therefore a misalliance (Missheirat) according to the family laws of the Wittgensteins, as well as according to the doctrines of the German law and of the law of the order of princes. As a result, the defendant did not enter into the rank and 102 PRINCE FREDERICK V. PRINCESS LUDWIG. [CHAP. VI. condition of her husband, and had not the right, which depends upon membership in the family, to use the title and the arms. The defendant maintained that the law of the Canton of Geneva, in which her husband took up his domicil with her after the celebra- tion of the marriage, should be applied. 1 The defendant was condemned in the Court of First Instance, ac- cording to the plaintiff's prayer, and the decision was affirmed by the Appellate Court at Arnsberg. The defendant appealed from this judg- ment ; but the appeal was rejected by the Reichsgericht for the fol- lowing reasons. The Court. In agreement with the judge of First Instance the Appellate Court held that for the decision of this suit the Swiss law, that is, the existing law of the Canton of Geneva, did not apply, but the German law of the Order of Princes. This application is entirely correct. Whether we should agree with the reasons put forward by the judges below we need not decide ; nor need we further examine the appellant's arguments against them, since their application in the present case arises from the special nature of the principles here brought in question, without considering what principles one should regard as fundamental for the decision of questions involving the con- flicts of laws with regard to questions of status and family law. The late husband of the defendant, Prince Ludwig of Sayn-Wittgen- stein-Sayn, belonged without doubt to the high nobility of Germany and to the Prussian peerage. For the establishment of his legal rela- tions generally, as for the decision of the question with what person he may contract a marriage having full civil effects, the special prin- ciples would be applied which are established in the law of the Order of Princes for the high nobility, the independent provisions of the family law of the Wittgensteins and the common prince-law of Ger- many. These principles are in their subject and in their historical development not of a territorial but of a personal nature, and deter- mine the decision of the legal rights of peers without regard to their present domicil, even if it be outside German}'. The State of Prussia decrees to the peer, wherever he is domiciled, as part of and along with his peerage, the common German prince-law and the special law of peerage as a personal law. This is a substantial incident of peerage, and neither Article 14 of the German Constitution nor the royal Prussian statutes regulating the legal rights of peers make them de- pendent on domicil. Even should the foreign State in which a Prus- sian peer has established his domicil not recognize the special or the common German prince-law as his personal law, the Prussian State cannot refuse this recognition. For the Prussian courts in determining the legal rights of members of .the princely family of Sayn-Wittgen- stein-Sayn the existing prince-law of that house governs, equally whether the member in question has established his domicil in Ger- many or in a foreign country. For the decision of the question, what 1 Only so much of the case as concerns this ground of defence is given. — Ed. SECT. III.] ANONYMOUS. 103 were the effects of the marriage contracted by the defendant with her late husband, it therefore seems to be of no importance whether the latter, who at the time of his marriage was a Prussian subject, had his domicil in Geneva or in Prussia. . . . If inquiry is made, what consequences the marriage of a member of the high nobility with a woman of the burgher class has, there can be no doubt that such a marriage, so far as the ordinary legal pre- sumptions go, is a complete, true marriage. These consequences, how- ever, do not extend to all civil relations ; and, in particular, the wife here does not enter into the rank of her husband, but retains her former rank. She does not participate in the privileges of her hus- band's rank ; she is not empowered to use the princely or ducal title and arms as a sign and representation of her husband's rank and position and the appurtenances of a family of the high nobility. ANONYMOUS. Reichsgericht. 1887. [Reported 42 Seuffert's Arckiv, 303.] Petition for nullity of marriage. The parties, both German, the husband a Protestant and the wife a Catholic, had been married in Buenos Ayres, where they were temporarily resident, by a German Evangelical minister, the requirements of the Argentine Code not having been complied with. 1 The Court. In the Appellate Court a new ground of complaint was added, that the marriage had not been celebrated in the form re- quired by the law of the place of celebration, namely, Buenos Ayres: the fact being that it had indeed been consecrated by the resident pastor of the German Evangelical congregation, but had not been cele- brated directly afterward before the competent Catholic priest. This ground of complaint also was properly rejected by the Court of Appeal. It is, to be sure, laid down by some writers that a marriage contract can be properlv completed only in the form prescribed by the law of the place of celebration, (e. g. by von Sicherer, l'ersonenstand und Kheschliessung, p. 349 ; von Friedberg, Kirelienrecht, 2d ed. § 156, p. 349) ; but this opinion, although it has become valid for marriages entered into within German territory by :i positive enactment, in § 41 of the Reichsgesetzes. February 0, 1875, does not agree with the princi- ples of the°common law in regard to the local sovereignty of principles of law. According to these the proposition locus regit actum is valid also in the case of a marriage contract: this, however, allows according i Tin's sl.ort statement <>f facta is that of the •■'lit".-. The discussion by the court of tin' first ground of nullity alleged is omitted. — Ed. 104 ANONYMOUS. [CHAP. VI. to the prevailing view, which is also adopted by the Reichsgericht (Entsch. i. 323 ; xiv. 184), not only the application of the form pre- scribed at the place of the legal action, but at the same time concur- rently the form of the law which is otherwise decisive of the action in question. Therefore it is properly assumed that the marriage may be legally contracted either in the form of the place of celebration or in that of the place which is decisive for the personal relations of the man. Von Bar, Internat. Recht, p. 324 ff. ; Stobbe, Deutsches Privatr. (2d ed.) I. § 31, p. 222 ff. ; Dernburg, Preuss. Privatr. I. § 27 ; III. § 4, and Pand. I. § 48, p. 106. This place is (according to the common law of Germany as held by the Reichsgericht, in agreement with the prevailing doctrine) the domicil of the husband. He who will attack as null an actually existing marriage entered into in a foreign country on account of a legal defect of form of celebration must above all things distinctly allege under the sovereignty of what law the husband personally stood at the time of the marriage. In other words, he must aver either where he at that time had his domicil; or if (according to the law specially deciding the question) not residence but nationality should govern the case, then to what State the husband at the time owed allegiance. When, as in the present case, no averments whatever are made upon this point, the judge who has to decide the petition for nullity (who according to sections 568 and 13 of the Code of Procedure is, for married parties who live within the German empire, always the judge of the present domicil of the man, or in case of doubt every judge) has to apply his own law. Here it is applied as the law which is concurrent with the lex loci actus in governing questions of form, according to the meaning of the rule locus regit actum. As a result of this, the application by the Oberlandesgericht of the law which at the time of the marriage prevailed at Hamburg, was clearly justified ; though, it is true, the reason given in the judgment appealed from, — namely, that the judge in the case of suits for nullity of marriage and for divorce must always apply only his own law, — was subject to serious doubt. Furthermore, the assumption of the Appellate Court that by the marriage of the parties in 1864, in Buenos Ayres, by the resident Evangelical pastor, the requirements of the law then prevailing in Hamburg as to the form of the marriage contract were satisfied, is in agreement with the deciding principles of law. The first point was correctly laid down, that it was sufficient in Hamburg, as a chiefly Protestant State, if a mixed marriage between a Protestant man and a Catholic woman was entered into only in the form of the common German Protestant church law ; and further, it is wholly beyond a doubt that according to Protestant church law the validity of the marriage contract is not dependent upon the fact that he was the proper officiating clergyman (which here, by the way, is not alleged), but the marriage by any settled minister was enough. At any rate, SECT. III.] LHEEMITE V. CHOISI. 105 a valid marriage may be celebrated by one who is not deprived of the right to this function by the law of the place of his settlement ; and there was no such deprival by the Argentine law, according to the whole spirit of its provisions on this subject. LHERMITE v. CHOISI. Civil Tribunal of the Seine. 1899. [Reported 27 Clunet, 350.] The Tribunal. On the 14th of September, 1889, Charles Alexis Choisi, an adult thirty years of age, married Mrs. Josephine Verheydt- Deveux before a justice of the peace of the parish of Lafayette, in the State of Louisiana; and on the 12th of June, 1895, he had this union celebrated by a religious service at Bay Saint-Louis (America) ; but this marriage was not preceded in France by the publications required by articles 63 and 170 of the Civil Code. Of this union on April 12, 1890, one daughter was born, Hermance-Augustine, called Lucy. Charles Alexis Choisi died on June 19, 1897, at Pearlington, in the State of Mississippi. His sisters, Mmes. Lhermite and Huau, have brought against his widow an action to have his marriage declared null as clandestine, and consequently to have his daughter excluded from the succession to his mother, Mine. Choisi. It is not denied that the marriage of Charles Alexis Choisi was cele- brated according to the accustomed forms in the country where it took place. The suit for nullity, according to the terms of the demand, was b^sed only on the violation of Article 170 of the Civil Code. French- men may marry abroad on condition of making, in France, the pub- lications prescribed by our Code ; it is necessary to discover the punishment for breach of this condition in order to reach the proper solution of this case. The spouses not having fulfilled the condition, are evidently subject to the penalty established by Article 192, that is, a fine in proportion to their fortune ; but does it also follow that the marriage is null? In questions of marriage, nullity is not to be declared by implication; hence in the absence of an express provision attaching the penalty of nullity to the failure to observe a formality that does not go to the essence, it is not permissible to annul a contract so solemn. Article 170 provides, it is true, thai the marriage shall be valid if it was preceded by publication, but it does not expressly pronounce it null if this condition is not fulfilled, and one cannot infer it by an argument a contrario. Consequently the mere omission of publication in France does not cause nullity of a marriage celebrated abroad. It would not, however, be the same if the spouses, in omitting the publication in France, had the purpose of keeping their union concealed from the eyes of the French public. It appears by the statement 106 LIIEKMITE V. CHOISI. [CHAP. VI. of their case at the hearing that the plaintiffs rely upon this clandes- tinity ; and moreover it alone can give them a cause of action by Article 191, since no text gives collaterals the right to rely on the mere failure to carry out Article 170. Under these conditions it is proper to consider whether the circumstances which preceded, accompanied, and followed the celebration of the marriage in question show on the part of the spouses the fixed intention to perpetrate a fraud on their national law. It is shown by the documents in the case that Choisi left France in 1884, to establish himself in America, with the consent of his lather, who furnished him the money for his journey and continued for several years to send him aid. He found a situation in Louisiana, where he fixed his principal establishment. After that Madame Verheydt- Deveux, with whom he had lived in concubinage at Paris since 1882, came to join him. Furthermore it is proved that Choisi before being married by a public official to Mme. Deveux, in 1889, carried out formalities which show that the intention of marriage had been duby published. He seems to have done the same before the religious cere- mony of June 12, 1895. Finally, up to the death of Choisi the spouses, had possession of a status that conformed to their act of marriage ; and the child, the issue of their union, appears always to have been treated as a legitimate child. It results from the evidence stated that Choisi certainly did not leave France with the purpose of marriage, to escape the provisions of the French law. At the time of the marriage he had long lived in Louisiana, and had not preserved a domicil in France. His union, surrounded by the formalities required in that country, was not clan- destine, and in the eyes of every one gave him at once the quality of legitimate husband of Mme. Verheydt-Deveux. Under these circum- stances it is impossible to find that Choisi, who had reached the age when he could marry without his mother's consent, had the fixed inten- tion, in failing to have actes respectueux notified, of concealing his marriage from the French public, and of perpetrating a fraud upon his national law ; above all, since that law does not pronounce the nullity of a marriage contracted by a son in defiance of the provisions which re- quire actes respectueux. In such a situation the tribunal would commit an inconceivable excess of rigor, in spite of the serious wrongs of Choisi toward his family, if it allowed an action which would do so profound an injury to the status of a young girl, a minor, who has up to this time enjoyed the privileges of a legitimate child. For these reasons declares Mmes. Lhermite and Huau and their husbands proper parties to sue, but their suit not maintainable ; and dismisses the suit with costs. 1 1 Ace. 26 Clunet, 1042 (Brussels, 8 Dec. '98). Where a desire to evade the national law is shown, the marriage is invalid. 21 Clunet, 1074 (Austria, 26 Apr. '92) ; 26 Clunet, 799 (Paris, 3 March, '98). — Ed. SECT. IV.] SHAW V. GOULD. 107 SECTION IV. LEGITIMACY AND ADOPTION, SHAW v. GOULD. House of Lords. 18G8. [Reported Law Reports, 3 English and Irish Appeals, 55.] John Wilson, of Stenson, in the county of Derby, made his will, dated the 27th of February, 1832 (duly executed to pass real estate), and after directing payment of debts, etc., bequeathed to trustees one moiety of his personal estate in trust for his great-niece, Elizabeth Hickson, for her life, and after her death upon certain trusts for the benefit of her child, or children, or issue ; and in case she should not have any child or issue, upon trust for his nephew, Ambrose Moore, his executors, etc. He devised his real estate to trustees during the life of his great-niece, Elizabeth Hickson, for her separate use, remainder to the trustees for 500 years, to raise portions for her younger children, and, subject thereto, to the first son of the body of the testator's said great-niece lawfully begotten, and the heirs of his body, etc., remainder to every other son of the body of his said great- niece lawfully begotten, and his heirs successively, etc., remainder to the use of the daughters of Elizabeth Hickson lawfully begotten, as tenants in common in tail, remainder to the use of Ambrose Moore for life, remainder to his first and other sons in tail. On the 10th of June, 1828, Elizabeth Hickson, being then about sixteen years of age, was induced by the fraud of a person named Buxton, to contract a marriage with him. The marriage was never con- summated, and for his fraudful act Buxton was indicted, and convicted, and sentenced to three years' imprisonment. No formal dissolution of this fraudulently procured marriage ever took place, and in December, 1838, a formal deed of separation was executed by Buxton in consider- ation of a sum of money then paid to him, and of the grant of an annuity for life. In 1844, a Mr. John Shaw, who was then studying for admission to the English liar, addressed proposals of marriage to the lady, who, notwithstanding what had passed, still continued to be called Elizabeth Hickson, and hia proposals were favorably received, but it was doubted whether any lawful marriage could lake place between them until that which had once been solemnized with Buxton was formally dissolved. Buxton, after undergoing his sentence, had cohabited in the c ty of Derby with one Sarah Lant. A suit, lor a divorce on the ground of adultery was, in June, 1844, instituted by Elizabeth Buxton, or Hick- 108 SHAW V. GOULD. [CHAP. VI. son, in the Arches Court of Canterbury, but was not persevered with. Negotiations were then opened with Buxton to induce him to go to Scotland for a time necessary to give the Scotch courts jurisdiction in a divorce suit. These negotiations resulted in an agreement that Buxton should go to Scotland, and remain there a certain time. He was to receive £40 for his expenses : in case he should be divorced he was to receive £250 within three months from the death of a person named in the agreement, with interest thereon until that time ; this sum " to be forfeited if he gave or caused to be given such information as would be prejudicial to the divorce." He was, on the divorce being pronounced, to receive a farther sum then in the hands of the lady's trustees, to retain his annuity, and if he had to stay in Scotland more than eight weeks he was to receive £5 a week in addition. At the end of November, 1844, Buxton went to Scotland, and took up his residence first at Dumfries, and then at the neighboring village of New Abbey, where he continued until the end of January, 1845. On the 16th of January, 1845, he was served with a summons in a suit for a divorce issued out of the Court of Session, at Edinburgh, at the suit of Elizabeth Buxton. This suit was not prosecuted to a decree, but another was commenced in November, 1845, to which Buxton put in defences that he and his wife were natives of England, that the marriage was English, that the proper domicil of the parties was England, and that the Scotch court had no jurisdiction to pronounce a divorce. The court, however, proceeded with the suit, in which a decree, declaring the marriage dissolved on the ground of adulter}-, was pronounced in March, 1846. In June, 1846, John Shaw and Elizabeth Hickson were in due form married in Scotland. Mr. Shaw, instead of returning to England and coming to the English Bar, became an advocate at the Bar of Scotland, and was thenceforth domiciled in that country. He resided in that country up to the time of his death, which happened in September, 1852. Buxton, who had at once returned to England, pre-deceased him b}' several months. There were three children of this union, the appellants in the present case. Mrs. Shaw died on the 28th of July, 1863. On the 3rd of July, 1865, the appellants, by their next friend, presented a petition to the Lord Chancellor, praying for maintenance out of the trust funds which had been paid into court under the Trustee Relief Act. On the 14th of March, 1865. Ambrose Moore, and other parties, claiming to be interested in these funds in case the appellants should be declared not entitled to them, presented a petition in the nature of a cross-petition, setting forth their own claims, and denying those of the appellants, alleging that the appellants were not the children lawfully begotten of the said Elizabeth Hickson, for that she still continued the wife of Buxton, the divorce from him having been obtained b} r collusion, and being in itself invalid for the purpose of dissolving an English marriage. SECT. IV.] SHAW V. GOULD. 109 The two petitions came on together for hearing before Vice-Chan- cellor Kindersley, who, on the 7th of December, 1865, made an order refusing the petition of the appellants, and directing that the funds in court should be applied for the benefit of the respondents. This was the order appealed against. 1 Lord Cranwortii. . . . If -the parties in this case had been Scotch, and not English, and if all which occurred had occurred not in England but in Scotland, there would, I presume, have been no question on the subject. If Thomas Buxton, being a domiciled Scotchman, had married in Edinburgh, Elizabeth Hickson, being a domiciled Scotchwoman, and afterwards, while their Scotch domicil continued, she had obtained a de- cree of divorce in the Court of Session, and then had married John Shaw, the issue of that marriage would certainly have been legitimate. The argument of the appellants is, that the consequence must be the same, though the parties were at the time of the first marriage domiciled in England, and were married there. The question, it is contended, is, whether, when the second marriage was contracted, the parties to it had the capacity to contract marriage ; in other words, whether the effect of the divorce was to enable them to enter into a valid contract of marriage, which, but for the divorce, they certainly could not have entered into. The whole, therefore, turns on the validity of the divorce. Now, the law of Scotland seems clear that a residence in Scotland for forty days makes that country the domicilium fori of any person so residing in the country, in which, for the purposes of litigation, he is to be treated as being domiciled. And it is assumed that this is true whatever be the nature of the litigation ; that it holds equally in cases the decision in which may involve the personal status of those who may claim through the litigant parties ; so also where it is a mere dispute between the litigant parties themselves. Taking this, however, to be the undoubted law of Scotland, the question is, whether that principle is one which this country is bound to recognize. I think it is not. The facts of this case do not raise the question as to what would have been the status of these children if Buxton and Elizabeth Hick- son, though married at Manchester, had always been Scotch persons, and had always lived in Scotland ; or even what it would have been if, before the proceedings for the divorce, Buxton had actually bona fide quitted England permanently, and established himself in Scotland, so as to have acquired a Scotch domicil for all intents and purposes. It may be that in these circumstances the courts 'of this country would recognize the status of these children, so as to entitle thorn, after the death of their mother, to the fund given to her children; which no doubt must be construed as meaning her legitimate children. But on that point I express no opinion. . . . The important differences on the subject of marriage and divorce which exist in the different parts of the United Kingdom often give 1 Arguments of counsel and parts of the opinions are omitted. — Ki>. 110 SHAW V. GOULD. [CHAP. VL rise to perplexing difficulties, and exhibit a state of our law little creditable to us. But these difficulties make it more than usually in- cumbent on those who have to administer the law to take care that wherever a clear line has been drawn by judicial decision the course which it has marked out should be rigidly followed. Now, whatever be the difficulties in such cases as the present, I think the doctrine that no divorce in Scotland resting mereby on a forum domicilii, had, at all events before the passing of our English Divorce Act in 1857, any effect in England on the validity of an English marriage, is es- tablished on the highest authority. . . - 1 These cases clearly decide the one now before the House, for if the first marriage here was not dissolved there could not have been a second marriage. Till the first was dissolved there was no capacity to contract a second. If after the second marriage Buxton and Elizabeth had again cohabited, and there had been issue, that issue would certainly have been legitimate by the law of England, and it cannot be argued that the issue of both unions could share together. The view which I take of this case relieves me from the necessity of considering whether the resort to Scotland for the purpose of the divorce, and the arrangements made among the parties for bringing about that object, were or were not of such a character as to taint the whole of the proceedings with fraud ; I am not at all satisfied that they were, but I am glad to be relieved from the necessity of deciding on such a ground. There is only one farther observation which I decide to make : it is this : In saying that the Scotch courts have no power to dissolve an English marriage where the parties have only gone to Scotland for the purpose of obtaining there a domiciliiim fori, I do not mean to express any opinion as to what might be the effect of a divorce so obtained considered merely as a Scotch question. In the anomalous state of our laws relating to marriage and divorce, it may be that such a pro- ceeding may be valid to the north of the Tweed, but invalid to the south. And I am painfully sensible of the inconveniences which may result from such a state of the law. But it must be for the legislature to set it right. The authorities seem to me to show clearly that whatever may be the just decision of the Scotch courts in such a case as the present, on this subject of divorce according to Scotch law, it is one in which this country cannot admit any right in them to interfere with the in- violability of an English marriage, or with any of its incidents. To do so would be to allow a prejudice to English law to be created by the decisions of what, for this purpose, we must call a foreign law, thus going beyond what, in the passage cited from Huber, any country is culled on to do. On these short grounds I am of opinion that there was no foundation for this appeal, and I move your Lordships that it may be dismissed. 1 Lord Cranworth here cited Lolley's Case, R. & R. 237, 2 Cl.&F. 567; Conway o Beazley, 3 Hagg. Ecc. 639 ; Dolphin v. Robins, 7 H. L. C. 390. — Ed. SECT. IV.] SHAW V. GOULD. Ill Lord Chelmsford. . . . Whether the appellants answer the de- scriptions respectively of "son lawfully begotten, - ' and of "children," depends upon whether their parents were lawfully married ; and this again depends upon the effect of a divorce in Scotland dissolving the marriage of their mother with Thomas Buxton in England. . . . Vice-Chancellor Kiudersley, in giving his judgment against the validity of marriage, said, " that to assert the validity of the Scotch divorce, upon which alone the validity of the marriage with Shaw- depends, is to assert that the Court of Session is not bound by the principle of international law ; that all questions as to the validity, or incidents, or consequences of a marriage, are to be decided according to the lex loci contractus, i. e., the law of the country where it was solemnized." But in a suit for a divorce the validity of the marriage is not in question, and the violation of the marriage contract can hardly be called one of the " incidents" or " consequences " of it. If a divorce is to be regarded as a remedy for the breach of the matrimonial con- tract, it is a general principle of international law that all remedies depend upon the lex fori, and not on the lex loci co?itractus. A question of greater difficulty which has been argued in this case is : What is the effect of a Scotch divorce upon an English marriage, where the married parties do not afterwards become domiciled in Scotland, nor have resorted thither with the design of invoking the jurisdiction of the court, but where, happening to be in the countrv, one of them applies for and obtains a decree of divorce? Since the decision in Lolley's Case the courts of Scotland have from time to time asserted and exercised a jurisdiction to dissolve marriages which have taken place in England, and elsewhere than in Scotland, where the parties to them had acquired no permanent domi- cil in that country, but had merely continued there a sufficient time to give the courts jurisdiction. These cases have never been ap- pealed to this House, so as to raise the question of the validity of such divorces in a form to require your Lordships to decide upon the exist- ence of the jurisdiction according to the principles of Scotch law. I cannot, therefore, subscribe to the opinion expressed by my noble and learned friend, Lord Cranworth, in Dolphin v. Robins, " that it must be taken now as clearly established that the Scotch court has no power to dissolve an imglish marriage where the parties are not really domiciled in Scotland." But whatever opinion may be ultimately entertained as to the extent of the power of the Scotch courts to dissolve English marriages, the validity of the divorce of the appellants' mother from Buxton cannot be admitted, if it was obtained by concert or collusion. 1 . . . It is possible that the Scotch courts might not have entertained the same view of the question of collusion which I have formed. But even if they had. it appears from the evidence of the Scotch advocates 1 Lord Chelmsford held the divorce collusive. — Ed. 112 SHAW V. GOULD. [CHAP. VI. produced in this case that, according to the law of Scotland, reduction of a decree of divorce upon the ground of collusion cannot be pro- nounced after a year and a day from the date. I suppose, therefore, that the Scotch courts would sustain the decree of divorce, and would hold the subsequent marriage to be valid if they were brought into question before them. The counsel for the appellants therefore con- tend that the decree of divorce being irreversible, the marriage of the parents of the appellants was valid, and the status of legitimacy of the appellants being established in Scotland must be recognized everywhere. They farther argued that, even assuming the marriage to be invalid, the appellants might still be legitimate. They ground this argument upon the law of Scotland, " which'" (according to the evidence of the Scotch advocates, to whom I have previously referred), -- from con- siderations of expediency and humanity, adopted the rule of the canon law, which recognized the legitimacy of children born of a putative marriage, — that is, a marriage regular and solemn in point of form, but null in law, because of the existence of an impediment such as the prior existing marriage of one of the parties, both or either of the parties being ignorant of the existence of the prior marriage." The authority of text writers was referred to upon this point, all of whom confine the ignorance which renders children of a void marriage legitimate to ignorance of some fact by the parents. In the present case there was no fact bearing on the validity of the second marriage unknown to either of the parties to it. The}' drew their conclusions from known facts, and acted upon their own judgment as to the correctness of the advice given them upon the subject of the decree of divorce. Although they ma}* have proceeded bona fide upon this advice, still their case is not brought within the principle of the law as laid down both by the evidence and in the text writers, as the igno- rance imputed is not of fact, but of law. But if a constructive legitimacy of this kind would, under the cir- cumstances, have arisen in Scotland, I cannot think that we could be bound to recognize it so far as to qualify the offspring of a void mar- riage to take under the description of " children " in an English will. My opinion in this case is founded entirely upon the peculiar cir- cumstances attending it ; the first marriage having taken place in England between parties having an English domicil which they never changed, and the divorce in Scotland having been obtained by pre- concerted arrangement, the parties resorting in the Scotch courts for the sole purpose of making it instrumental to the attainment of their objects. If this does not amount to collusion in the sense in which that term appears to have been employed in some cases of this de- scription, I do not think that the tribunals of this country can regard a divorce thus obtained as binding on their judgment. It seems to me that this case cannot be distinguished from that of Dolphin v. Robins, 7 H. L. C. 390, decided by your Lordships, where the validity SECT. IV.] SHAW V. GOULD. 113 of a will made in France depended upon the effect of a Scotch divorce upon an English marriage. In that case there was an agreement be- tween the married parties to procure a divorce in Scotland, and the hus- band was to receive £12,000, which was to be forfeited in case he should by false or insufficient evidence prevent the divorce being obtained (for so I interpret the ambiguous and inaccurate language of the memoran- dum upon that subject). It was held that a divorce procured by the execution of this preconcerted arrangement was. as Lord Kingsdown expressed it, "mere mocker} - , and collusion from beginning to end."' In that case the husband was to forfeit the money he was to receive for assisting to procure the divorce "if he should prevent its being obtained by false or insufficient evidence." In the present case Buxton was to forfeit what he was to receive " in case he should give information prejudicial to the divorce." I think the cases exactly resemble one another. Whatever may be the view of the Scotch courts as to the legitimacy of the appellants, your Lordships are called upon to determine whether they answer a particular description upon principles of English law. and by* the rules of construction of an English will. It is clear that the words "son lawfully begotten" and "children" in the will in question can apply only to a legitimate son or to legitimate children, and that the appellants, not having the character of legitimacy accord- ing to English law, cannot take under these descriptions. The decree appealed from must be affirmed. Lord Westbury. My Lords, this case depends on the answer to the question, whether a marriage solemnized in England between two English subjects domiciled in England at the time, can be dissolved by the decree of a foreign tribunal. According to the institutions of England as existing at the time of the alleged divorce, no such decree could have been obtained in any Court, for no forensic tribunal existed in England with jurisdiction to grant divorces a vinculo matrimonii. The foreign decree of divorce is adduced for the purpose of determining a question touching a right of property that has arisen in an English court of justice, and which must be decided by English law. It is therefore a question of English law, and the true inquiry is : Does the English law recognize and admit the finality of a foreign judgment divorcing, <"/ vinculo matri- monii, English subjects who were married in England? The foreign decree may be perfectly valid and unimpeachable within the territorial jurisdiction of the judge who pronounced it. It may there fix the legal status of persons and conclude the right and title to property ; but it may still not be such a sentence as by the comity of nations (that is, by the general principles of jurisprudence which are recognized by the Christian States of Europe) has an extraterritorial effect and authority. The first essential for the validity of a foreign decree is, that it should be pronounced by :i courl of eompetenl jurisdiction between vol.. ii. — 8 114 SHAW V. GOULD. [CHAP. VI parties who are bona fide subject to that jurisprudence. In the present case two English subjects who had married in England being desirous of obtaining a divorce, crossed the border into Scotland for the purpose of getting it. The wife sued the husband for a divorce in a court which was competent to exercise jurisdiction for such a purpose over those who were subject to it. But could this court, consistently with true principles, assert such jurisdiction over those who were not permanently residing within the limits of its authority? I am not looking at the simulated residence in Scotland with a view to holding the judgment collusive, but with reference to the ques- tion whether the Scotch court can justly assert that by such tempo- rary residence it acquired a jurisdiction which the courts of another country ought to recognize and admit. It is perfectly competent to the courts in Scotland to fix a certain amount of residence as the condition for the exercise of its jurisdiction, and if that condition be fulfilled, it may proceed to pronounce a judgment that will be bind- ing within its own borders ; but that judgment cannot claim extra- territorial authority unless it be pronounced in accordance with rules of international public law. The extent and limits of the comity of nations, or of the obligation which one nation is under to receive and admit the judgments of the courts of another country, are well defined in one of the axioms of Huber, who says: " Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium prayudicetur." But if the court of a foreign country permits the subjects of a bordering nation to resort to it for the purpose only of getting rid of the personal status and obligations of husband and wife, which release they cannot obtain in the courts of their own country, it is plain that such foreign court is in reality, by its tribunals, usurping the rights and functions of sovereignty over the subjects of another country who still retain, and, as soon as the purpose is answered, intend to return to their native country and resume, their original posi- tion. Can this be done without injury to the authority of such border- ing power and to the rights of its subjects? Social rights depend in very many cases upon the personal status and relations of individuals ; that is to say, upon the relation of hus- band and wife, father and child, and all the relations which are conse- quent upon marriage, and if these relations as they exist cannot be altered by the tribunals and domestic law of the country where they were formed, are not the institutions of that country prejudiced, and its subjects injured, by permitting a foreign court to be invoked for the purpose of altering social rights and duties, which cannot be changed under their own laws, in their own courts of justice? It is true that persons commorant in a foreign country, but without any intention of remaining there, are, whilst they are so commorant, subject to the laws of that country, and must yield obedience to them ; SECT. IV.] SHAW V. GOULD. 115 but that is a very different thing from a country permitting foreigners to resort to it for the sole purpose of getting released from the most solemn of all contracts, and the most important social obligations. Marriage is the very foundation of civil society, and no part of the laws and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and conditions of forming, and, if necessary, of dissolving the marriage contract. No nation can be required to admit that its domiciled subjects may lawfully resort to another country for the purpose of evading the laws under which they live. When they return to the country of their domicil, bringing back with them a foreign judgment so obtained, the tribunals of the domicil are entitled, or even bound, to reject such judgment, as having no extraterritorial force or validity. They are entitled to reject it, if pronounced by a tribunal not having com- petent jurisdiction ; and they are bound to reject it, if it be an invasion of their own laws and polity. But this right to reject a foreign sentence of divorce cannot rest on the principle stated by the Vice-Chancellor in his judgment, namely, that where, by the lex loci contractus, the marriage is indissoluble, it cannot be dissolved by the sentence of any tribunal. Such a principle is at variance with the best established rules of universal jurisprudence, that is to say, with those rules which, for the sake of general conven- ience and by tacit consent, are received by Christian nations and observed in their tribunals. One of these rules certainly is, that questions of personal status depend on the law of actual domicil. It is said by a foreign jurist of authority, Rodenburg, and his works are cited with approbation by many recent writers, " Unicum hoc ipsa rei natura ac necessitas invexit, ut cum de statu et conditione hominum quoeritur, uni solum modo Judici, et quidem Domicilii universum in ilia jus sit attributum." This position, that universum jus, that is, jurisdiction which is complete and ought to be everywhere recognized, does, in all matters touching the personal status or condition of per- sons, belong to the judge of that country where the persons are domiciled, has been generally recognized. The language of Boullenois, a French jurist of authority, is to the same effect. His position is, that the laws of a sovereign extend over persons domiciled within his territory, and over property which is there situate. That this rule is one which is introduced by ipsa rei natura ac necessitas, is well illustrated and enforced by Lord Brougham, in his judgment in the case of Warrender v. Warreiider. If, as is certain, the domicil of origin may be effectually put oil', and a new domicil acquired by persons who are uni juris, it must follow that sueh persons thereby become, to all intents and purposes, subject to, and entitled to the benefit of, the laws and institutions of the adopted country, in like manner as they were entitled and subject to the laws of the domicil of origin, and that without becoming aliens in their own native country. 116 SHAW V. GOULD. [CHAP. VI. Mr. Justice Story, in his book on the Conflict of Laws, § 205 n., cites a judgment delivered by the Supreme Court of Pennsylvania, in which, after observing that a bona fide domicil, in the strictest sense of the word, was essential to jurisdiction to pronounce a divorce a vinculo matrimonii, Chief Justice Gibson treats the British teuet of perpetual allegiance as the root of the English doctrine of the indissolubility of the marriage contract. I hardly need observe that this is an unfounded notion, and that the political maxim of nemo potest exuere patriam, which preserves the duty of allegiance notwithstanding the change of domicil, has nothing to do with the personal relations and rights of British subjects under civil contracts. If it were permitted by this House to be supposed that the law of this country was to the effect stated by the Vice-Chancellor, viz., that the lex loci contractus enters into and forms part of the marriage con- tract, so that if, by the law of the country where the marriage is solemnized, and of which the parties are natural-born subjects, no divorce a vinculo can be granted, and such marriage is everywhere indissoluble, it would be a conclusion that would lead to the most startling results. Suppose two Roman Catholics, who, having married in Spain, afterwards became Protestants, and are bona fide domiciled in this country, where they reside for 3'ears, could it be held that the husband was bound b} r the lex loci contractus from seeking a divorce from his wife by reason of adultery committed during such residence ? On the other hand suppose two Prussian subjects married at Berlin, where a divorce may be obtained for incompatibility of temper, could they, on becoming domiciled in England, claim a divorce on such a ground before the tribunals of this country, where such a ground of divorce is not judicially recognized? Many other cases might be put, but it it is unnecessary to do so, for I apprehend there is no substantial authority for the position. In England, since the Reformation, mar- riage, being no longer a sacrament, has alwa}'s, in theory of law, been dissoluble for adultery in the wife, and for incestuous adultery and other crimes by the husband ; but until the recent Divorce Act, this law was administered by Parliament alone, and although the decision of Parliament was in the form of an act or privilegium, and not of a judicial decree, 3-et the act was granted upon evidence proving that the case came within the scope of certain established rules. This pro- ceeding was in spirit a judicial, though in form a legislative act. The justice of divorce was recognized, but no forensic tribunal was in- trusted with the power of applying the reined} - . But the law and practice of Parliament were well known ; and, in fact, this House acted as a court of justice. It cannot, therefore, be correctly said, that divorce a vinculo matrimonii was contrary to the principles and insti- tutions of this country. It follows that the validity of a foreign decree of divorce must be ascertained in the same manner and on the same rules by which the conclusive effect of other foreign judgments has to be determined. SECT. IV.] SHAW V. GOULD. 117 The position that the tribunal of a foreign country having jurisdic- tion to dissolve the marriages of its own subjects is competent to pronounce a similar decree between English subjects who were married in England, but who before and at the time of the suit are permanently domiciled within the jurisdiction of such foreign tribunal, such decree beino- made in a bona fide suit without collusion or concert, is a position consistent with all the English decisions, although it may not be consistent with the resolution commonly cited as the resolution of the judges in Lolley's Case. 1 . . . It follows that the marriage of Mr. and Mrs. Buxton was legally subsisting at the time of the second marriage between Mrs. Buxton . and Mr. Shaw ; and that the second marriage was therefore void, and the issue of it cannot claim to be entitled by English law to the benefit of the trust previously declared for the children of Elizabeth Hickson. But even if the first husband, Mr. Buxton, had been permanently domiciled in Scotland before and at the date of the decree for divorce, in which case the Scotch courts might have had jurisdiction, I should still have been of opinion that the decree was not binding, as having been collusively obtained. But I abstain from resting my judgment upon this ground, because I entertain a doubt whether collusion could be now used as a sufficient reason for setting aside the decree after the deaths of all the parties to the proceeding. . . . For these reasons I am of opinion that the decree of the Vice-Chan- cellor was correct, and ought to be affirmed. % Lord Colonsat. . . . When it is said in unqualified terms that a marriage duly celebrated in England, according to the rites of the Eno-lish Church, ought to be regarded and treated by the courts of other countries as a contract involving the element of absolute indis- solubility as of its essence, and ought not to be under any circum- stances dissolved by decree of a foreign court ; in short, that a foreign court has no power to dissolve an English marriage ; that is a proposi- tion in general or international law, and would require to be maintained bv reference to recognized rules of international law, or general princi- ples of jurisprudence. But although the proposition has been intro- duced into this case it has not been supported by any such reference, and I cannot assent to it as resting on any recognized rule of inter- national law. It appears to me to involve more than one fallacy. It assumes as a basis that absolute indissolubility is an inherent quality of an English marriage, necessarily attaching to it under all circum- stances. Then, building on that basis, it assumes that as regards in- ternational law the relation of husband and wife stands on the same footing as ordinary business contracts, and, farther, it assumes thai the lex loci contractus must be the sovereign rule for determining all questions as to the rights, duties, and obligations arising out of that relation, and the remedy or redress to be given in the event of either party acting in violation of the contract. i Lord Westbury examined Lolley's Case, i Russ. & R. 237 ; Warrender v. War render, 2 CI. & F. 567; Dolphin v. Robins, 7 II. I.. <\ 390. — Ed. 118 SHAW V. GOULD. [CHAP. VI. I hold each and all of these assumptions to be more or less erro- neous. Is it sound that absolute indissolubility is an inherent qualit}' of marriage when celebrated in England according to the rites of the English Church? Is it so regarded even in England? I have heard no authority for that. . . . The fallacies that have lurked in undefined notions of the indissolu- bility of English marriages, and the omnipotence of the lex loci con- tractus, being dislodged, what are the rules by which we should be governed in deciding this case? Assuming in the meantime that the case depends entirely on the reception (so to speak) to be given to the foreign decree of divorce, it is to be observed that the respondents deny that the decree is valid according to the law of the country in which it was pronounced. If we are to go into that inquiry we must deal with it upon the evidence, and the evidence, so far as it goes, is in favor of the validity of the decree. Of course I do not include in the evi- dence an opinion said to have been given b} - a witness, not in this cause, and which had due reference to the question of jurisdiction. I therefore presume that we must deal with the case on the footing that the decree is, or may be, a valid decree of divorce in Scotland. Then why is that decree to have no effect given to it in England? not because the English marriage was absolutely indissoluble ; not because the jus gentium restrains the courts of one country from dissolving a marriage celebrated in another country, or holds that the lex loci contractus is necessaril}* imported in its totalit}' into whatever country the parties may go to. It must be because the circumstances of this case bring it within some exception recognized in general law, or because the law of England, irrespective of any rules of general law, refuses to give effect to such a decree. The main feature of the case in this view is that the parties, at least Buxton the husband, being a domiciled Englishman, having no connection with Scotland, went there for the purpose of giving to the Scottish court jurisdiction in the suit for divorce at the instance of his wife. I think that the English cases referred to, viz. Lolle}''s Case and Conway v. Beazle}*, and the case of Dolphin, are precedents to the effect that the courts of England will not recognize a decree of divorce obtained under such circum- stances, and that, sitting in an English court, I am bound to respect these precedents so far as the}' go ; and they may be sufficient for the decision of the present case. At the same time I may be permitted to sa}", that I am not so clear in my apprehension of the principle of general law on which those decisions proceeded. It was said that a foreign court has no jurisdiction in the matter of divorce, unless the parties are domiciled in that country ; but what is meant by "domicil ?" I have observed that it is designated some- times as a bona fide domicil, sometimes as a real domicil, sometimes as a complete domicil, sometimes as a domicil for all purposes. But I must, with deference, hesitate to hold that on general principles of jurisprudence, or rules of international law, the jurisdiction to redress SECT. IV.] SHAW V. GOULD. 119 matrimonial wrongs, including the granting of a decree of divorce a vinculo, depends on there being a domicil such as seems to be im- plied in some of these expressions. Jurisdiction to redress wrongs in regard to domestic relations does not necessarily depend on domicil for all purposes. If the decisions to which I have referred proceeded on the ground that the resort to the foreign country was merely for the temporary purpose of giving to the courts of that country the opportunity of dealing with the case according to their own law, and thereby obtaining a dissolution of the marriage, and that such was the object of both parties, these decisions might be said to derive support from principles of general law, on the ground of being in fraudem legis. But if you put the case of parties resorting to Scotland with no such view, and being resident there for a considerable time, though not so as to change the domicil for all purposes, and then suppose that the wife commits adultery in Scotland, and that the husband discovers it, and immediately raises an action of divorce in the court in Scotland where the witnesses reside, and where his own duties detain him, and that he proves his case and obtains a decree, which decree is unques- tionably good in Scotland, and would, I believe, be recognized in most other countries, I am slow to think that it would be ignored in England because it had not been pronounced by the Court of Divorce here. How would the Court of Divorce here deal with the converse case? I can figure many phases in which the question of the efficacy of a decree of divorce may present itself, and I am unwilling, in the present case, to go farther than to say that the cases referred to satisfy me that the law of England does not acknowledge the validity of a decree of divorce obtained in the circumstances disclosed in this case. There is still another point in the case which has raised some doubt in my mind. It is this : Assuming, as we must do, on the evidence, that, according to the law of Scotland, the marriage of the father and mother of the appellants was a valid marriage, and they are children lawfully procreated of that marriage, and so in their own country legitimate from their birth, is that status to be denied to them in this country, on the ground that is here pleaded ? I do not question the loo-ic of the reasoning bv which the conclusion has been reached, that if there were no valid divorce there was an incapacity to marry, and, consequently, no valid marriage. But there was a valid divorce, and a capacity to marry in the territory, and when that marriage has resulted in the birth of children, who have the status of legitimate children according to the law of their own country, are we in reference to them and their rights to revert to an inquiry, at whatever distance of time, as to whether Buxton's resort to Scotland was, or was not, for the purpose of facilitating the divorce? That has not been directly de- cided in any of the cases, — not even in the case of Vardill, — but I think the cases tend in that, direction BO Strongly that I cannot, espe- cially after the opinions now delivered, take upon myself to suggesl a doubt as to their being the law of England, although I do not sec my 120 IN RE GROVE. [CHAP. VL way to reconciling it with general principles of jurisprudence, or the generally recognized rules of international law. . . . The learned judge in the court below refers to the monstrous con- sequences that would result from recognizing the possibility of a man havincr two lawful wives, one in England, and another in some other country. But I think he has failed to perceive that such a state of matters would be promoted rather than restricted by the doctrine of absolute indissolubility, and of the supremacy of the lex loci contractus, while it would not exist if effect was given to the foreign decree of divorce. Order affirmed, and appeal dismissed. In re GROVE. Court of Appkal. 1888. [Reported 40 Chancery Division, 216.] Further Consideration. This was an action for the administration of the estate of Caroline Emilia Grove, a domiciled Englishwoman, who died on the 29th of October, 1866, at the age of eighty-eight, a lunatic and intestate, and possessed of considerable personal estate. In October, 1867, as no next of kin appeared to claim her estate, letters of administration were granted to the Solicitor to the Treasury ; and the Treasury shortly afterwards took possession of the estate. Two sets of persons subsequently set up conflicting claims to the estate as next of kin of the intestate, i. e. the Vaucher family and the Falquet family, and this action was brought by a member of the former family in 1884. In the course of the proceedings an inquiry was directed as to who were the next of kin of the intestate, and evidence was gone into from which it appeared that both the Vaucher family and the Falquet family claimed through the same man, Marc Thomegay, and the same woman, Martha Powis, under the following circumstances : — Marc Thomegay, who was the grandfather of the intestate, was born in Geneva of Swiss parents, in the year 1712, and there was no question that his domicil of origin was Genevese. On the 13th of August, 1728, he was received as a burgess of Geneva. In 1729, his father, who was a watchmaker, died in Geneva. Marc Thomegay was a worker in gold and silver, and in 1734, being then twenty-two years of age, he came to England, where he remained until his death in 1779. In the year 1743 a private Act of Parliament was passed, whereby Peter Thomegay, the brother of Marc Thomegay, and four other foreigners were naturalized as subjects of Great Britian, but this act did not include and made no mention of Marc Thomegay. Some time after the arrival of Marc Thomegay in England, he formed a connection with an Englishwoman named Martha Powis ; he SECT. IV.] IN RE GROVE. 121 cohabited with her, for several years, and had by her three illegitimate children, viz., Sarah, who was born on the 5th of February, 1744. and was baptized on the 24th of the same month by the name of Sarah Thomegay, in the church of St. Mary. Whitechapel, where he presented her under his own name and as his daughter; a son, who was born on the 11th of January, 1745, and was baptized on the 16th of February following, in the same church ; and another daughter, who was born on the 14th of November, 1747, and was baptized on the 13th of December following, in the parish church of Barking in Essex. These two children were also baptized under their father's name, and as his children. Sarah Thomegay, on the 19th of December, 1768, married M. Delom, a citizen of Vevey, and she was the ancestress of the Vaucher family. Elizabeth Thomegay married a M. Courbel, a citizen of Geneva. On the 22d of May, 1749, Marc Thomegay was married to an Englishwoman named Elizabeth Woodhouse, in the church of St. Pancras ; of this marriage there was issue one child, viz. Margaret Sarah Thomegay, who was born on the 22d of December, 1749, and was baptized on the 13th of January, 1750, in the church of St. Leon- ard's, Shoreditch. Margaret Sarah Thomegay, on the 13th of June, 1788, married an Englishman named William Grove, and she died in London in the year 1792, having had issue one child only, viz. the intestate Caroline Emilia Grove. Elizabeth Woodhouse died on the 26th of March, 1752, and on the 2d of February, 1755, Marc Thomegay married Martha Powis, by whom he had formerly had the three illegitimate children above mentioned. Of this marriage there was issue four children, one of whom died in infancy. The others were Jean, who was born on the 5th of October, 1756, and was baptized on the 29th of the same month in the church of Westham, Essex; Richard, who was born on the 11th of February, 1762, and was baptized on the 1st of March following, in the church of St. Leonard's, Shoreditch ; and Sophie Martha, who was born on the 12th of November, 1764, and was baptized on the 7th of December following, in the same church. Of these three children, Sophie Martha was the only one who left issue, and she in 1791 married Jean Louis Falquet, and was the an- cestress of the Falquet family. Martha Thomegay (nee Powis) died in the year 1772. In the year 1774 Marc Thomegay presented a petition to the Council of Geneva, apparently in the interesl of his three children by Martha Powis before his marriage with her, in which he Btated " that in 1784 he went to England, where he now is, that one of the first ties he formed was an attachment for Miss Martha Powis, whom he intended to marry as soon as fortune would allow him to 1 Concurring opinion- of Cotton and Lopbs, L.JJ., are omitted. They differed from Fry, I.. .1., in holding that Thomegay was domiciled in England at the birth of Sarah, Part of the opinion of Fry, L. J., is omitted.— Ed- 124 SCOTT V. KEY. [CHAP. VI. the well-being of the State, that they are regulated not by the private contract, but b} r the public laws of the State, which are imperative on all who are domiciled within its territory." I would remark again, that I entirely agree with what has been said by Lord Justice Cotton, with regard to the effect of the cases of Munro v. Munro, 7 CI. & F. 842, and Udny v. Udny, Law Rep. 1 H. L. Sc. 441, on this question of law, and I think that they very strongly support the conclusion which I have endeavored to express. Now, that being so, we come back to the question of fact, where was Marc Thomegay domiciled in 1755 when he contracted marriage with Martha Powis ? In my judgment his domicil was English. . . . and that consequently the English law of marriage must govern the effects of the marriage then contracted, and that English law would not allow subsequent legitimation. I come, therefore, to the same conclusion, though by a somewhat different course, as that of my learned brother. Appeal dismissed with costs. 1 SCOTT v. KEY. Supreme Court of Louisiana. 1856. [Reported 11 Louisiana Annual, 232.] Buchanan, J. 2 This cause has already been before this court, and was remanded to make proper parties defendant. See 9 La. Ann. 213. Plaintiffs are the surviving brother and sisters of Samuel Estill, deceased, and the children of a deceased brother of said Samuel. They claim to be heirs at law of Samuel Estill. The defendants are the curator, and the half-brothers and sisters, heirs of one William Estill, who was a natural son of Samuel Estill, but legitimated by a statute of the State (then territory) of Arkansas, of which Samuel and William Estill were at the time residents, passed October 27th, 1835, and en- titled "an act to legitimatize the son of Samuel Estill." For a cop}" of the said statute in full, see the report of this case in 9th La. Annual. The question now presented for our decision is, whether the statute in question had an extraterritorial effect, and enabled William Estill to inherit, as the legitimate son of Samuel Estill, the property left hy the latter in Louisiana. The solution of this question appertains to a distinction (which has been recognized by various decisions of the Su- preme Court of Louisiana) of statutes real and statutes personal. The leading case on this subject is Saul v. His Creditors, 5 Mart. n. s., in which it was decided, that the general law of Virginia, which renders 1 Ace. Munro v. Munro, 1 Kobt. H. L. 492 ; Smith v. Kelly, 23 Miss. 167 ; Miller v. Miller, 91 N. Y. 315 ; Dayton v. Adkisson, 45 N. J. Eq. 603, 17 Atl. 964. —Ed. 2 The statement of facts, arguments, and dissenting opinion are omitted. — Ed. SECT. IV.] SCOTT V. KEY. 125 property acquired during marriage the property of the husband, is a real statute, which did not follow a couple, who had contracted mar- riage in Virginia, into the State of Louisiana, where they resided many years, and where the wife died ; but that property acquired in Louisiana after their removal thither, entered into the matrimonial partnership of our law, and on the dissolution of the marriage, belonged one-half to the wife's heirs. And in the case of Banna v. Alpuente, 6 Mart. x. s. (the same judge, Porter, who had, in the case of Saul, reviewed all the au- thorities, being the organ of the court), it was decided that the laws of domicil of origin govern the state and condition into whatever country the party removes ; in other words, that such laws are personal statutes. And those two decisions are in harmony with the definition by Chief Justice Eustis, of the real and personal statute, in the case of the Augusta Insurance Company v. Morton, in 3 La. Ann. 426 : " Those laws are real," says the learned judge, ''in contradistinction to per- sonal statutes which regulate directly property, without reference to the condition or capacity of its possessor." There are some expressions of Judge Strawbridge, in the case of Brosnahan r. Turner, 16 La. 439, which are relied upon by plaintiffs' counsel, and which are scarcely consistent with this definition. But the decision in Brosnahan v. Tur- ner turned upon a totally different point, the validity of a sheriff's sale. The remarks in Brosnahan v. Turner, as to the incapacity of the testa- mentary heirs of Villarude to inherit in Louisiana, under a will probated under the authority of a statute of Florida, arc at best but obiter dicta, and besides refer to a very different state of facts from that presented in this case. Here, an infant, or minor, son of a resident of Arkansas, born out of wedlock, was. by an act of the legis- lature of the country of his domicil, legitimated, or put upon the same footing as if his parents had been married at the time of his birth. It is admitted of record, that William Estill, then a small child, Octo- ber 27, 1835, resided with his natural father, Samuel Estill, in Ar- kansas, who was then a citizen of Arkansas, and resided in Arkansas, and that both of them resided therein for several years he fore 1835, and also continued to reside in Arkansas until some time between 1837 and 1841." Arkansas was then the bona J>(' bastards, either by subsequent marriage or by an act of the government (rescriptum principis), is nothing but a legal equalization of certain children illegitimately begotten with 134 BLYTHE V. AYRES. [CHAP. VI. legitimate children." In other words, the object and effect of section 230 is to change the status and capacity of an illegitimate child to the status and capacity of a child born in lawful wedlock. . . . The contention of appellants that the status of a person residing in a foreign country, and a subject thereof, cannot be changed by acts per- formed in California under a provision of the law of our State legisla- ture, cannot be supported as a rule without many exceptions, and to the extent of those exceptions a State law must be held, by its own courts at least, to have extraterritorial operation ; and this principle of the foreign operation of State laws even goes to the extent that in many instances such laws are recognized and given effect by the courts of that particular foreign jurisdiction. The doctrine of extraterritorial operation of State laws is fully exemplified in the case of Hoyt v. Thompson, 5 N. Y. 340. . . . Section 215 of the Civil Code is as follows : " A child born before wedlock becomes legitimate by the subsequent marriage of its parents." This section takes a wide range. Its operation is not confined within State lines. It is as general as language can make it. Oceans furnish no obstruction to the effect of its wise and beneficent provisions ; it is manna to the bastards of the world. If Blythe, subsequent to the birth of plaintiff, had returned to England, and married Julia Perry, such marriage, under the provision of law just quoted, ipso facto would have resulted in the legitimation of Florence Blythe. Then, in answer to the interrogatory of appellants already noticed, we say that she was so domiciled that by the laws of California she could have been changed from bastardy to legitimacy. Our statute, conjoined with principles of international law, would have changed her bastardy to legitimacy in the world at large ; and regardless of international law, and regardless of all law of foreign countries, our statute law alone would have made her legitimate in the world at large, whenever and however that question should present itself in the courts of California. And we also have here a most striking illustration of the extraterritorial operation of California law. We have the effect of a statute of this State attaching to a state of facts where the mother and child were never in California, but residing and domiciled in England, and the marriage taking place in England ; and California law, as stated, has the effect upon that child to give it a different domicil, and completely change its status. Such would not only be the effect of this law upon the child viewed by California courts, but such would be its effect viewed by the courts of England, where the child was domiciled, and that, too, notwithstanding no provisions of law are there found for the legitimation of bastards. This assumption of Blythe's marriage to Julia Perry, in its facts, forms an exact photograph of the celebrated case of Munro v. Munro, found in 1 Rob. App. 492 ; a case crystallizing the judicial thought of the age upon the subject, and commanding the respect of all writers and judges upon the law of domicil. . . . Appellants insist that the domicil of the child irrevocably fixes that child's status. In this case, subsequent tn the child's birth, Julia Perry SECT. IV.] BLYTHE V. AYKES. 135 married a domiciled Englishman ; hence her domicil was permanently established in England, and for that reason the child's domicil, being the mother's domicil, was permanently established there. Under appellants' reasoning this state of facts would forever debar the child from legitimation, lor even its presence in California would avail noth- ing as against its English domicil. If such be good law, section 226 of the Civil Code, expressly authorizing the adoption of minors of other States, is bad law, for it is squarely in conflict with those views. . . , "We have quoted thus extensively from the authorities upon the sub- ject of domicil as specially bearing upon the question of legitimatio per subsequent matrimonium for the reason that we are unable to perceive any difference in the general principles of law bearing upon that character of legitimation and in those principles bearing upon other forms of legitimation authorized by the same statute. The only distinction claimed by appellants is that legitimation founded upon subsequent marriage is based upon the fiction of law that a previous consent existed, and the marriage related back to that time. Upon this point it would seem all-sufficient to say that our statute does not recognize such a fiction, and its effective operation in no wise depends upon the assumption of its presence. Times are not what they once were, and we live in an age too practical to build our law upon the unstable foundation of fictions. . . . Legitimation is the creature of legislation. Its existence is solely dependent upon the law and policy of each particular sovereignty. The law and policy of this State authorize and encourage it, and there is no principle upon which California law and policy, when invoked in Cali- fornia courts, shall be made to surrender to the antagonistic law and policy of Great Britain. . . . Plaintiff was the child of Blythe, who was a domiciled citizen of the State of California. She founds her claim upon the statutes of this State, and is now here invoking the jurisdiction of the courts of this State. It is a question of California law, to be construed in California courts, and we see nothing in our constitution or statutory law, or in international law, to have prevented Blythe from making the plaintiff his daughter in every sense that the word implies. In conclu- sion, we hold that Blythe, being domiciled in the State of California both at the time of the birth of plaintiff and at the time he performed the acts which it is claimed resulted in the legitimation of plaintiff, and California law authorizing the legitimation of bastards by the doing of certain acts, it follows that Florence Blythe, the plaintiff, at all times was possessed of a capacity for legitimation under section 2:50 of the Civil Code of this State. 1 1 Upon an examination <>f t T i « - evidence, the Learned judge decided thai Blythe had done all things required by § 230 to legitimate his daughter. Patbbbon and Sharp, btbin, JJ., concurred. McFarland and De Haven, JJ., held that the acts required for legitimation under § 230 had not taken place, bnl concurred in the result <>n the ground that plaintiff was heir under § L387. Bbatty, C. J., and Harbison, J., the immovable, Story, Conf. !>., 148 MESSIMY V. THE REGISTKY. [CHAP. VII. § 483, the defendant, her husband, as administrator of her estate in Tennessee, is entitled to her movable effects ; and is not bound to account for them to her children. Story, Conf. L., § 481. * ^:- MESSIMY v. THE REGISTRY. Court of Cassation, France. 1887. [Reported Pandectes Francaises, 1887 (6th Part), 12.] By the terms of a deed executed before Maitre Bagiensky, notary at St. Petersburg, on October 10, 1881, certain Russians after making the declarations required by the appendix to Article 7 for the government of mines with a view of obtaining the concession of certain petroleum- bearing lands in the Province of Bakou, formed under the name of " The Naphtha Company of the Caucasus," a company to take the pos- session, usufruct, and disposition of the lands conceded, for the purpose of developing petroleum wells, selling the products, and acquiring the usufruct or the title, by purchase, lease, or governmental concession, of other petroleum-bearing lands. By a proces-verbal of November 29, 1881, at Lyons, recorded with the records of Maitre Messimy, notary, on December 10 following, an anonymous joint-stock association, under the title of " Company for the Production of Naphtha and Petroleum in the Caucasus," was formed. This company by votes of November 6, 1881, recorded with Maitre Messimy, received as assets, 1st, from the Naphtha Company of the Caucasus, the concession of petroleum-bearing lands in the Province of Bakou, the property of that company ; 2d, from one Himof , the ex- clusive right to develop for thirty years certain petroleum-bearing lands near Bog-Boga. In consideration of these conveyances, the Company for the Produc- tion of Naphtha and Petroleum in the Caucasus assigned to the Naph- tha Company of the Caucasus 6311 shares, fully paid, of 500 francs each, and paid 3,155,500 francs in cash. For the same consideration Himof received 689 shares and 344,500 francs in cash. After the registration of the articles of association of the French company there was imposed, in addition to the duty levied on the twenty-five million capital of the company, a duty of two per cent, as on a transfer of movables, on the total amount of 3,500,000 francs paid to the Naphtha Company of the Caucasus and to Himof, representing their conveyances. 2 . . . Maitre Messimy contests the legality of this assessment, on the ground, 1st, that the money value of the convey- ances from the Naphtha Company of the Caucasus is not subject to i Ace. Ex parte Rucker, 3 Dea. & Ch. 704. But see Williamson v. Smart, C. & N. 146. — Ed. 2 Only so much of the case as deals with this duty is given. — Ed. SECT, i.] MESSIMY V. THE REGISTRY. 149 the duty due on sale of movables (two per cent), but to the duty of one- tenth of one per cent, the thing conveyed being an immovable. . . . The Tribunal of Lvons gave the following judgment: " Ihe ques- tion is, to determine 'the nature of the duty, and for that purpose, the movable or immovable nature of the thing conveyed. The provisions bv which the legislature indicates what goods should be regarded as movables and what as immovables are real laws. French real laws aovern exclusively things situated in French territory, whoever be the owners, and have no application to things situated outside the terri- tory. This principle shows that when Article 4 of the law of August •>3 1871, designates foreign movable securities as submitted to a tax, it designates no" movable securities situated abroad and considered mov- ables in France, but foreign securities which are movables according to the statute which governs them. If the transfer by onerous title, by the concessional of a mine, of all his rights in the concession is the transfer of a right to immovables, when the mine is situated in t rench territory, it is a result of the juridical nature given to mines by Article 8 of the law of April 21, 1810, which is a real statute, without applica- tion outside the territory. The conveyance made by the Naphtha Company of the Caucasus to the Company for the Production consists of the concession of petroleum-bearing lands situated in the Russian Empire, a concession obtained from the Russian government on the basis of declarations made bv representatives of the Company, in con- formity with Article 7 of the Regulations for Mines ; the movable or immovable character is therefore determined by the Russian law and not by the French. The concession of petroleum-bearing lands of the Caucasus is governed by the Russian law of February 1, 1872, so far as the determination of the rights of the concessionaries is concerned. By the terms of Articles 7, 20, and 21 of this law the petroleum-bearing lands are conceded for the development of the wells, and the conces- sionaries acquire the right of using while the State retains ownership in the lands. This right is a movable right, and creates a movable security for the benefit of the concessionary. The foregoing applies also to the convevance of Himof, all the more that the conveyance expressly consists"' only of the exclusive right to develop for thirty years certain petroleum-bearing land. Article 4 of the law of August 23 1871, § 2, subjects to the proportional duty transfers, whether aratuitous or for value, when they take effect in France, of foreign public funds, shares, obligations, interests in partnerships, credits, and generally of all foreign securities of whatsoever nature. The law makes no distinction between corporeal and incorporeal movables ; it is not confined to movables possessed by foreigners domiciled in France, whether with or without authorization." . . • An appeal was taken from this judgment to the court of Cassation bv Maitre Messimy. . . . The Court. . . . Immovables are governed by the law of the coun- try in which they are situated. The question of knowing whether cer- 150 CLARK V. GRAHAM. [CHAP. VII. tain property is movable or immovable can be determined only by the law of the country where it is found. This principle is applicable not only in civil but also in fiscal matters. Therefore, in considering as movables, by application of the Russian law, of concessions in mines situated in Russia, the judgment appealed from made a just application of the statute real, and violated none of the provisions of law invoked by the appellant. Appeal dismissed. SECTION II. IMMOVABLES. CLARK v. GRAHAM. Supreme Court of the United States. 1821. [Reported 6 Wheaton, 577.] Todd, J. This is an action of ejectment brought in the Circuit Court for the District of Ohio. At the trial, the plaintiff proved a title suffi- cient in law, prima facie, to maintain the action. The controversy turned altogether upon the title set up by the defendants. That title was as follows: A letter of attorney, purporting to be executed by John Graham, bearing date the 23d of September, 1805, authorizing Nathaniel Massie to sell all his estate, etc., in all his lands in Ohio. This power was executed in the presence of two witnesses in Rich- mond, in Virginia, and was there acknowledged by Graham before a notary public. Nathaniel Massie, by a deed dated the 7th day of June, 1810, and executed by him in Ohio, in his own right, as well as attorney to John Graham, conveyed to one Jacob Smith, under whom the defendants claimed the land in controversy. This deed was executed in presence of one witness only, and was duly acknowledged and recorded in the proper county in Ohio. The deed and letter of attorney so executed and acknowledged, were offered in evidence by the defendants, and were rejected by the court, upon the ground that they were not suffi- cient to convey lands according to the laws of Ohio. The defendants also offered in evidence a deed from Jacob Smith and wife, to the said Graham, dated the 7th of March, 1811, duly witnessed, acknowledged, and recorded, conveying a certain tract of land in Ohio, and offered further to prove, that the tract of land so conveyed was given in ex- change for and in consideration of the lands conveyed by the deed first mentioned to Smith. This evidence, also, was rejected by the court. A bill of exceptions was taken to these proceedings by the defendants ; and the jury found a verdict for the plaintiff, upon which a judgment SECT. II.] CLARK V. GRAHAM. 151 was entered for the plaintiff, and the present writ of error is brought by the defendants to revise that judgment. The principal question before this court is, whether the deed so ex- ecuted by Massie was sufficient to convey lands by the laws of Ohio. If not, it was properly rejected ; if otherwise, the judgment should be reversed. Two objections have been taken to the execution of this deed ; first, that the power of attorney was not duly acknowledged, as every deed is required to be in Ohio in order to convey lands ; and if so, then the subsequent conveyance is void, for it is a general principle, that a power to convey lands must possess the same requisites, and ob- serve the same solemnities, as are necessary in a deed directly convey- ing the lands. On this objection, which is apparently well founded, it is unnecessary to dwell, as another objection is fatal ; that is, the deed of Massie was executed in the presence of one witness only, whereas the law of Ohio requires all deeds for land to be executed in the pres- ence of two witnesses. It is perfectly clear, that no title to lands can be acquired or passed, unless according to the laws of the State in which the}- are situate. The act of Ohio regulating the conveyance of lands, passed on the 14th of February, 1805, provides, "that all deeds for the conveyance of lands, tenements, and hereditaments, situate, lying, and being within this State, shall be signed and sealed by the grantor in the presence of tico witnesses, who shall subscribe the said deed or conveyance, attesting the acknowledgment of the signing and sealing thereof: and if executed within this State, shall be acknowl- edged by the party or parties, or proven by the subscribing witnesses, before a judge of the Court of Common Pleas, or a justice of the peace in any county in this State." Although there are no negative words in this clause, declaring all deeds for the conveyance of lands executed in any other manner to be void ; yet this must be necessarily inferred from the clause in the absence of all words indicating a different legis- lative intent, and in point of fact such is understood to be the uniform construction of the act in the courts of Ohio. The deed, then, in this case, not being executed according to the laws of the State, the evi- dence was properly rejected by the Circuit Court. The remaining point, as to the rejection of the evidence of the deed from Smith to Graham, and the proof to show that it was given in ex- change for the land in controversy, has not been much relied on in this court. It is, indeed, too plain for argument, that if a deed imperfectly executed would not convey any estate or interest, in the land, a parol exchange, or parol proof o( an intention to convey the same in ex- change, cannot be permitted to have any such effect. 1 Judgment affirmed^ with costs. 1 Ace. Swank v. Bufnagle, m In. SECT. Ill] CAMMELL V. SEW ELL. 155 set aside, and a verdict entered for the defendant ; and the plaintiffs brought the ease into the Exchequer Chamber on a writ of error. 1 Crompton, J. In this case the majority of the court (Cockburn, C. J., Wigiitman, Williams, Crompton, and Keating, J J.) are of •opinion that the judgment of the Court of Exchequer should be affirmed. At the same time we are by no means prepared to agree with the Court of Exchequer in thinking the judgment of the Diocesan Court in Norway conclusive as a judgment in rem, nor are we satisfied that the defendants in the present action were estopped by the judg- ment of that court, or what was relied on as a judicial proceeding at the auction. It is not, however, necessary for us to express any de- cided opinion on these questions, as we think that the case should be determined on the real merits as to the passing of the property. If we are to recognize the Norwegian law, and if according to that law the property passed by the sale in Norway to Clausen as an inno- cent purchaser, "we do not think that the subsequent bringing the prop- erty to England can alter the position of the parties. The difficulty which we have felt in the case principally arises from the mode in which the evidence is laid before us in the mass of papers and depositions contained in the appendix. We do not see evidence in the case sufficient to enable us to treat the transaction as fraudulent on the part of Clausen, although there are circumstances which would have made it better for him not to have become the purchaser. Treating him, therefore, as an innocent pur- chaser, it appears to us that the questions are, did the property by the law of Norway vest in him as an innocent purchaser? and are we to recognize that'law? The question of what is the foreign law is one of facCand here again there is great difficulty in finding out from the mass of documents what is the exact state of the law. The conelusion which we draw from the evidence is, that by the law of Norway the captain, under circumstances such as existed in this case, could not, as between himself and his owners, or the owners of the cargo, justify the sale, but that he remained liable and responsible to them for a sale not justified under the circumstances ; whilst, on the other hand, an inno- cent purchaser would have a good title to the property bought by him from the agent of the owners. It does not appear to us that there is anything so barbarous or mon- strous in this state of the law as that we can say that it should not be recognized by us. Our own law as to market, overt is analogous ; and though it is said that much mischief would he done by upholding sales of this nature, not justified by the necessities of the case, it may well i This short statement of facts is substituted for thai of the Reporters in :; II. ,< V 617. Arguments of counsel are omitted. In the course of the argument, Cockburn, c j Ba ; d . « if ;l person sends goods to a foreign country it may well I"' thai he is bound by the law of that country; but here the g - were wrecked on the coa Norway", and came there without the owner's assent. Could the arrival of the goods there enlarge the captain's authority ' " — Ed. 156 CAMMELL V. SEWELL. |_CHAP. VII. be that the mischief would be greater if the vendee were only to have a title in eases where the master was strictly justified in selling as be- tween himself and the owners. If that were so, purchasers, who sel- dom can know the facts of the case, would not be inclined to give the value, and on proper and lawful sales by the master the property would be in great danger of being sacrificed. There appears nothing barbarous in saying that the agent of the owners, who is the person to sell, if the circumstances justify the sale, and who must, in point of fact, be the party to exercise his judgment as to whether there should be a sale or not, should have the power of giving a o-ood title to the innocent purchaser, and that the latter should not be bound to look to the title of the seller. It appears in the pres- ent case that the one purchaser bought the whole cargo ; but suppose the farmers and persons in the neighborhood at such a sale buy several portions of the goods, it would seem extremely inconvenient if they were liable to actions at the suit of the owners, on the ground that there was no necessity for the sale. Could such a purchaser coming to England be sued in our courts for a conversion, and can it alter the case if he resell, and the property comes to this country ? Many cases were mentioned in the course of the argument, and more might be collected, in which it might seem hard that the goods of for- eigners should be dealt with according to the laws of our own or of other countries. Amongst others our law as to the seizure of a foreign- er's goods for rent due from a tenant, or as to the title gained in them, if stolen, by a sale in market overt, might appear harsh. But we can- not think that the goods of foreigners would be protected against such laws, or that if the property once passed by virtue of them, it would again be changed by being taken by the new owner into the foreigner's own country. We think that the law on this subject was correctly stated by the Lord Chief Baron in the course of the argument in the court below, where he says " if personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere." And we do not think that it makes any difference that the goods were wrecked, and not intended to be sent to the country where they were sold. We do not think that the goods which were wrecked here would on that account be the less liable to our laws as to market overt, or as to the landlord's right of distress, because the owner did not foresee that they would come to England. Very little authority on the direct question before us has been brought to our notice. The only case which seems at variance with the prin- ciples we have enunciated is the case of the ' ' Eliza Cornish " or lt *Segredo," before the judge of the Court of Admiralty. 1 Eccl. & Adm. 36. If this case be an authority for the proposition that a law of a foreign country of the nature of the law of Norway, as proved in the present case, is not to be regarded by the courts of this country, and that its effect as to passing property in the foreign country is to be dis- regarded, we cannot agree with the decision ; and. with all the respect SECT. III.] CAMMELL V. SEWELL. 157 due to so high an authority in mercantile transactions, we do not feel ourselves bound by it when sitting in a court of error. We must re- mark, also, that in the case of Freeman y. The East India Company, 5 B. & Aid. 617, the Court of Queen's Bench appear to have assented to the proposition that the Dutch law, as to market overt, might have had the effect of passing the property in such case if the circumstances of the knowledge of the transaction had not taken the case out of the provisions of such law. In the present case, which is not like the case of Freeman v. The East India Company, the case of an English subject purchasing in an English colony propert\- which he was taken to know that the vendor had no authority to sell, we do not think that we can assume on the evidence that the purchase was made with the knowledge that the sell- ers had no authority, or under such circumstances as to bring the case within an}* exception to the foreign law, which seems to treat the mas- ter as having sufficient authority to sell, so as to protect the innocent purchaser where there is no representative of the real owner. It should be remarked, also, that Lord Stowell, in the passage, cited in the case of Freeman v. The East India Company, from his judgment in the case of the " Gratitudine," states that if the master acts unwisely in his de- cision as to selling, still the foreign purchaser will be safe under his acts. The doctrine of Lord Stowell agrees much more with the prin- ciples on which our judgment proceeds than with those reported to have been approved of in the case of the " Eliza Cornish," as, on the evidence before us, we cannot treat Clausen otherwise than as an inno- cent purchaser, and, as the law of Norway appears to us, on the evi- dence, to give a title to an innocent purchaser, we think that the property vested in him, and in the defendants as sub-purchasers from him. and that, having once so vested, it did not become divested by its being subsequently brought to this country, and, therefore, that the judgment of the Court of Exchequer should be affirmed. Cockburn, C. J. Concurring in the judgment delivered by my brother Crompton, it further appears to me that the case may also be put upon another and a shorter ground. Although the goods in question were at one time the property of English owners, the property in them was transferred to others by a sale valid according to the law of Norway, a country in which the goods were at the time of such sale. Even if it were admitted, for the purpose of argument, that by the law of the country to which the ship belonged the master would not have had the power to dispose of the ship or cargo in case of wreck. which the law of Norway gives in such a ease, and that- the law of Norway would be overridden by the law of the nation to which the ship belonged, then it is to he observed that, the ship having been a Prussian ship, and the carriers, the shipowners, Prussians, and tin- goods having been shipped in Russia, the power of the master must depend on the law either- of the country to which (lie ship belongedi or 158 LANGWOKTHY V. LITTLE. [CHAP. VIL of the place where the contract to carry was entered into. The law of England, never having attached to the goods, as they never were on board an English vessel or reached British territory, cannot apply to the case. The law of nations cannot determine the question, for the international law is by no means uniform as to the powers of a master, as abundantly appeared from the various codes which were brought to our notice during the argument. But no evidence was adduced to show what was the law of Prussia or that of Russia in the matter in question. The case therefore stands nakedl}' thus, — a good contract of sale to transfer the property in Norway, without anything to show that by the general law of nations, or by the law of an}' nation which can possibly apply to the present case, the sale valid in Norway can be invalidated elsewhere. Byles, J., dissented. Judgment affirmed. 1 LANGWORTHY v. LITTLE. Supreme Judicial Court of Massachusetts. 1853. [Reported 12 Cushing, 109.] This was an action of tort for a horse and buggy wagon, attached by the defendant, a deputy-sheriff, as the property of one Charles E. McCarty, September 11, 1849. The plaintiff, an inhabitant of Hills- dale, in the State of New York, claimed title under a prior mortgage from said McCarty, made and dated at said Hillsdale, September 1, 1849, at which time the property was at Hillsdale, and in the posses- sion of said McCarty. The mortgage was duly filed in the town-clerk's office of Hillsdale, according to the laws of New York, which were pro- duced and read at the trial in the Court of Common Pleas. Rev. Sts. of New York, vol. 2, p. 71. The plaintiff also proved a due demand on the defendant for the payment of the amount due him on said mort- gage, pursuant to Rev. Sts. c. 90, § 79, and that payment was refused. The defendant offered to prove that said McCarty, the mortgagor, at i The general rule that the passing of title to a chattel is determined by the law of the situs, not by that of the place of making the contract of transfer, nor by that of the domicil of the owner, is well established. Mackey v. Pettyjohn, 6 Kan. App. 57, 49 Pac. 636 ; Ames v. McCamber, 124 Mass. 85. (See, however, N. W. Bank v. Poynter [1895], A. C. 56; Fouke v. Fleming, 13 Md. 392.) Thus the requirements as to registration depend upon the law of the situs. Coote v. Jecks, L. R. 13 Eq. 597 ; Gosline v. Dun- bar, 32 N. B. 325. If the title has passed by the law of the situs, the new title is recognized in any State into which the goods may be brought ; and this although by the law of the latter State the title would not have passed. This rule obtains whether the title passed by consent of the parties, Rabun v. Rabun, 15 La. Ann. 471 ; Sleeper v. Pa. R. R., 100 Pa. 259 ; or by operation of law, as, for instance, by the statute of limitations. Shelby v. Guy, 11 Wheat. 361 ; Brown v. Brown, 5 Ala. 508; Waters v. Barton, 1 Cold. 450. — Ed. SECT. III.] LANGWORTHY V. LITTLE. 159 the time of making the mortgage, resided in the town of Mount Wash- ington, in this county, and after the mortgage was made, immediately returned with it to this State, and the same remained here in his pos- session, until it was attached by the defendant, on a writ in favor of citizens of Connecticut, who had no knowledge of the mortgage ; nor was the same recorded in the town of Mount Washington. Mellcn, J., ruled that these facts constituted no defence to the action, and the ver- dict being for the plaintiff, the defendant excepted to such ruling. The other facts of, the case are stated in the opinion. 1 Shaw. C. J. This mortgage of personal property was made in New York, the property then being there, to a citizen of New York, there residing, recorded in the town-clerk's office in the town of Hillsdale, New York, and so made as to be valid, and bind the property in that State. Being removed into Massachusetts, it was here attached by the defendant, as the property of the mortgagor. The property in question was a horse and buggy wagon, and it appeared that the horse and wagon were sold by the plaintiff at Hillsdale, to McCarty, the mort- gagor, and mortgaged back at the same time, to secure McCarty's note given at the same time, in part payment for said purchase. The plain- tiff, by this conveyance, acquired a good qualified title to the property, by the laws of the State of New York, a property sufficient to enable him to maintain trover against a wrongdoer ; and an officer attaching the property as the property of the mortgagor, especially without pay- ing, and in fact refusing to pay the debt of the mortgagee, when noti- fied to him and demanded of him, is as to him a wrongdoer. A party who obtains a good title to property, absolute or qualified, by the laws of a sister State, is entitled to maintain and enforce those rights in this State. It is a case where the lex loci contractus must govern. We think there is no ground for the argument, that by the St. 1843, c. 72, this mortgage should have been recorded by the clerk of the town where the mortgagor resides, and also of the town where he prin- cipally transacts his business, or follows his calling, and that said stat- ute obviously applies only to mortgages made in Massachusetts. Exceptions overruled? 1 Arguments of counsel are omitted. — Ed. 2 Ace, U. S. Bank v. Lee, 13 Pet. 107 ; Alferitz v. Ingalls, 83 Fed. 964 ; Beall v. Williamson, 14 Ala. 55; Hall v. Pillow, 31 Ark. 32 ; Ballard v. Winter, 39 Conn. 179; Peterson v. Kaigler, 78 Ga. 464, 3 S. E. 655 ; Mumford v. Canty, 50 111. 370 ; Smith v. McLean, 24 la. 322 ; Handley v. Harris, 48 Kan. 606, 29 Pac. 1 145 ; Keenan v. Stimson, 32 Minn. 377, 20 N. W. 364 ; Barker v. Stacy, 25 Miss. 471 ; Smith v. Hatch- ings, 30 Mo. 380; Offutt v. Flagg, 10 N. H. 46; Hornthal v. Burwell, 109 N. C. 10, 13 S. E. 721 ; Wilson v. Rustad, 7 N. D. 330, 75 N. W. 260; Kanaga v. Taylor, 7 Ohio S. 134; Greenville Nat. Bank v. Evans-Snyder-Buel Co., 9 Okla. 353; Cren- shaw v. Anthony, Mart. & Y. 102; Craig v. Williams, 90 Va. 500, 185 E. 899; Mc- Gregor v. Kerr, 29 N. S. 45. Contra, Wilson v. Carson, 12 Md. 54; Corhett v. Littlefield, 84 Mich. 30 (see Vining v. Millar, 109 Mich. 205, 67 N. W. 126) ; Armitage v. Spahn, 4 Pa. Dist. Ct. 270. And see Jones v. Taylor, 30 Vt. 42. In Greenville Nat. Bank v. E. S. B. Co., supra, Biikwei.l, J., said: " If these mortgages were valid mortgages where executed and where the property was local en 160 GREEN V. VAN BUSKIEK. [CHAP. VII. GREEN v. VAN BUSKIRK. Supreme Court of the United States. 1866, 1886. [Reported 5 Wallace, 307 ; 7 Wallace, 139.] Motion to dismiss a writ of error to the Supreme Court of the State of New York. The Constitution of the United States declares (Section 1, Article 4) that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; and that Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Under the power here conferred, Congress, by act of 1790, May 2G, 1 Stat, at Large, 122, provides that records, authenticated in a way which it prescribes, shall " have such faith and credit given to them in every other court of the United States as they have by law or usage in the court from which they are taken." With this provision of the Constitution and this law in force, Bates being the owner of certain iron safes at Chicago, in the State of Illi- nois, on the 3d day of November, 1857, executed and delivered, in the State of New York, to Van Buskirk and others, a chattel mortgage of them. On the 5th day of the same month Green caused to be levied on the same safes a writ of attachment, sued by him out of the proper court in Illinois, against the property of Bates. The attachment suit proceeded to judgment, and the safes were sold in satisfaction of Green's debt. Van Buskirk, Green, and Bates were all citizens of New York. Green's attachment was levied on the safes as the prop- erty of Bates, before the possession was delivered to Van Buskirk, and before the mortgage from Bates to him was recorded, and before notice of its existence. Van Buskirk afterwards sued Green, in the New York courts, for the value of the safes thus sold under his attachment, and Green pleaded the proceeding in the court of Illinois in bar of the action. In this suit thus brought by him in the New York courts, Van Buskirk obtained judgment, and the judgment was affirmed in the highest court of the State of New York. From this affirmance Green took a writ of error to this court, assuming the case to fall within the twenty-fifth section of the Judiciary Act, which gives such writ in any case wherein is drawn in question a clause of the Constitution of the United States, and the at the time, the rights of the mortgagee are vested rights which cannot be taken away from it. . . . We have no doubt but that the legislature has the power to enact a law providing for the filing of chattel mortgages executed in another State within a reason- able time after the mortgaged property is brought into this territory, and to provide that such mortgage shall be absolutely void as against creditors, and purchasers, and incumbrancers in good faith for value, if not filed within the time fixed ; but this has not been done." SECT. III.] GREEN V. VAX BUSKIRK. 161 decision is against the title, right, or privilege speciallj' set up. His assumption was that the faith and credit which the judicial proceedings in the courts of the State of Illinois had b}' law and usage in that State, were denied to them by the decision of the courts of New York, and that in such denial, those courts decided against a right claimed by him under the above-mentioned Section 1, Article 4, of the Constitu- tion, and the act of Congress of May 2G, 1790, on the subject of it. 1 Miller, J. The section of the Constitution discussed in this case, declares that ' ' full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; and that Congress ma}", bj* general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." The act of 1790 was intended to be an exercise of the power con- ferred upon Congress by this section. In the leading case of Mills v. Duryee, 7 Cranch, 481, this court held that the act in question did declare the effect of such judicial records, and that it should be the same in other States as that in which the proceedings were had. In the case of Christmas v. Russell} 5 Wall. 290, decided at the present term of the court, we have reaffirmed this doctrine, and have further declared that no State can impair the effect thus to be given to judicial proceedings in her sister State, by a statute of limitation intended to operate on demands which ma}* have passed into judgment by such proceedings, as though no such judgment had been rendered. The record before us contains the pleadings in the case, the facts found by the court, and the conclusions of law arising thereon. And notwithstanding the inverted manner in which the court has stated its legal conclusions, it seems clear that it did pass upon the effect of the judicial proceedings in Illinois upon the title of the property in contest. The case is not varied by declaring that the mortgage made and deliv- ered in New York overreached the subsequent attachment in Illinois. According to the view taken by that court, Van Buskirk, the plaintiff, had title to the property under the laws of New York by virtue of his mortgage, and the question to be decided was whether the proceedings in Illinois were paramount in their effect upon the title to the New York mortgage. It is said that Van Buskirk being no party to the proceedings in Illinois was not bound by them, but was at liberty to assert his claim to the property in any forum that might be open to him ; and, strictly speaking, this is true. He was not bound by wa}- of estoppel, as he would have been if he had appeared and submitted his claim, and con- tested the proceedings in attachment. He has a right to set up any title to the propert}' which is superior to that conferred by the attach- ment proceedings, and he has the further right to show that the prop- erty was not liable to the attachment, — a right from which he would 1 Arguments of counsel are omitted. — Ed VOL. II. — 11 162 GEEEN V. VAN BUSKIRK. [CHAP. VII. have been barred if be had been a party to that suit. And this question of the liability of the property in con trovers}' to that attachment is the question which was raised by the suit in New York, and which was there decided. That court said that this question must be decided by the laws of the State of New York, because that was the domicil of the owner at the time the conflicting claims to the property originated. We are of opinion that the question is to be decided by the effect given by the laws of Illinois, where the property was situated, to the proceedings in the courts of that State, under which it was sold. There is no little conflict of authority on the general question as to how far the transfer of personal property by assignment or sale, made in the country of the domicil of the owner, will be held to be valid in the courts of the country where the property is situated, when these are in different sovereignties. The learned author of the Commen- taries on the Conflict of Laws has discussed the subject with his usual exhaustive research. And it may be conceded that as a question of comity, the weight of his authority is in favor of the proposition that such transfers will generally be respected by the courts of the country where the property is located, although the mode of transfer ma}' be different from that prescribed by the local law. The courts of Ver- mont and Louisiana, which have given this question the fullest con- sideration, have, however, either decided adversely to this doctrine or essentially modified it. Taylor v. Boardman, 25 Vt. 589 ; Ward v. Morrison, id. 593 ; Emmerson v. Partridge, 27 Vt. 8 ; Oliver v. Townes, 14 Mart. La. 93 ; Norris v. Mumford, 4 Mart. La. 20. Such also seems to have been the view of the Supreme Court of Massachusetts. Lanfear v. Sumner, 17 Mass. 110. But after all, this is a mere principle of comity between the courts, which must give way when the statutes of the country where property is situated, or the established policy of its laws prescribe to its courts a different rule. The learned commentator, already referred to, in speaking of the law in Louisiana which gives paramount title to an attaching creditor over a transfer made in another State, which is the domicil of the owner of the property, says: "No one can seriously doubt that it is competent for any State to adopt such a rule in its own legislation, since it has perfect jurisdiction over all property, per- sonal as well as real, within its territorial limits. Nor can such a rule, made for the benefit of innocent purchasers and creditors, be deemed justly open to the reproach of being founded in a narrow or a selfish policy." Story on the Conflict of Laws, § 390. Again, he says: l ' Every nation, having a right to dispose of all the property actually situated within it, has (as has been often said) a right to protect itself and its citizens against the inequalities of foreign laws, which are in- jurious to their interests." Chancellor Kent, in commenting on a kindred subject, namely, the law of contracts, remarks, 2 Com. 599 : " But, on this subject of con- flicting laws, it may be generally observed that there is a stubborn SECT. III.] GREEN V. VAX BUSKIRK. 163 principle of jurisprudence that will often intervene and act with con- trolling efficacy. This principle is, that where the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land." In the case of Milne v. Moreton, 6 Bin. 361, the Supreme Court of Pennsylvania says, that " every countiy has a right of regulating the transfer of all personal property within its territory ; but when no posi- tive regulation exists, the owner transfers it at his pleasure." The Louisiana court, in a leading case on this subject, gives, in the following language, a clear statement of the foundation of this princi- ciple : " The municipal laws of a country have no force beyond its territorial limits, and when another government permits these to be carried into effect within her jurisdiction, she does so upon a principle of comity. In doing so, care must be taken that no injury is inflicted on her own citizens, otherwise justice would be sacrificed to comity. ... If a person sends his propert}* within a jurisdiction different from that where he resides, he impliedly submits it to the rules and regula- tions in force in the country whei-e he places it." Apart from the question of authority, let us look at some of the consequences of the doctrine held by the court of New York. If the judgment rendered against the plaintiff in error is well founded, then the sheriff who served the writ of attachment, the one who sold the property on execution, any person holding it in custody pending the attachment proceeding, the purchaser at the sale, and all who have since exercised control over it, are equally liable. If the judgment in the State of Illinois, while it protects all such per- sons against a suit in that State, is no protection anywhere else, it fol- lows that in every case where personal property has been seized under attachment, or execution against a non-resident debtor, the officer whose duty it was to seize it, and any other person having any of the relations above described to the proceeding, may be sued in any other State, and subjected to heavy damages by reason of secret transfers of which they could know nothing, and which were of no force in the juris- diction where the proceedings were had, and where the property was located. Another consequence is that the debtor of a non-resident may be sued by garnishee process, or by foreign attachment as it is sometimes called, and be compelled to pay the debt to some one having a demand against his creditors ; but if he can be caught in some other State, he may be made to pay the debt again to some person who had an assign- ment of it, of which he was ignorant when he was attached. The article of the Constitution, and the act of Congress relied on by the plaintiff in error, if not expressly designed for such cases as these, find in them occasions for their most beneficent operation. We do not here decide that the proceedings in the State of Illinois have there the effect which plaintiff claims for them, because that 164 GKEEN V. VAN BUSKIRK. [CHAP. YIL must remain to be decided after argument on the merits of the case. But we hold that the effect which these proceedings have there, by the law and usage of that State, was a question necessarily decided by the New York courts, and that it was decided against the claim set up by plaintiff in error under the constitutional provision and statute referred to, and that the case is therefore properly here for review. Jfotlon to dismiss overruled. Nelson and Swayne, JJ., dissenting. Davis, J. [on the merits]. 1 It should be borne in mind in the dis- cussion of this case, that the record in the attachment suit was not used as the foundation of an action, but for purposes of defence. Of course Green could not sue Bates on it, because the court had no juris- diction of his person ; nor could it operate on an}- other property be- longing to Bates than that which was attached. But as by the law of Illinois Bates was the owner of the iron safes when the writ of attach- ment was levied, and as Green could and did lawfully attach them to satisfy his debt in a court which had jurisdiction to render the judg- ment, and as the safes were lawfully sold to satisfy that judgment, it follows that when thus sold the right of property in them was changed, and the title to them became vested in the purchasers at the sale. And as the effect of the levy, judgment, and sale is to protect Green if sued in the courts of Illinois, and these proceedings are produced for his own justification, it ought to require no argument to show that when sued in the court of another State for the same transaction, and he justifies in the same manner, that he is also protected. Any other rule would destroy all safety in derivative titles, and deny to a State the power to regulate the transfer of personal property within its limits and to sub- ject such property to legal proceedings. Attachment laws, to use the words of Chancellor Kent, " are legal modes of acquiring title to property by operation of law." They exist in every State for the furtherance of justice, with more or less of liber- ality to creditors. And if the title acquired under the attachment laws of a State, and which is valid there, is not to be held valid in every other State, it were better that those laws were abolished, for they would prove to be but a snare and a delusion to the creditor. The Vice- Chancellor of New York, in Cochran v. Fitch, 1 Sandf. Ch. 146, when discussing the effect of certain attachment proceedings in the State of Connecticut, says : " As there was no fraud shown, and the court in Connecticut had undoubted jurisdiction in rem against the complainant, it follows that I am bound in this State to give to the proceedings of that court the same faith and credit they would have in Connecticut." As some of the judges of New York had spoken of these proceedings in another State, without service of process or appearance, as being nullities in that State and void, the same vice-chancellor says : " But these expressions are all to be referred to the cases then under 1 Part of the opinion is omitted. — Ed. SECT. III. J GREEN V. VAN BUSKIRK. 165 consideration, and it will be found that all those were suits brought upon the foreign judgment as a debt, to enforce it against the person of the debtor, in which it was attempted to set up the judgment as one binding on the person." The distinction between the effect of proceedings by foreign attach- ments, when offered in evidence as the ground of recovery against the person of the debtor, and their effect when used in defence to justify the conduct of the attaching creditor, is manifest and supported by authority. Cochran v. Fitch, 1 Sandf. Ch. 14G ; Kane v. Cook, 8 Cal. 449. Chief Justice Parker, in Hall v. Williams, 6 Pick. 232, speak- ing of the force and effect of judgments recovered in other States, says : l ' Such a judgment is to conclude as to everything over which the court which rendered it had jurisdiction. If the property of the citizen of another State, within its lawful jurisdiction, is condemned by lawful process there, the decree is final and conclusive." It would seem to be unnecessary to continue this investigation further, but our great respect for the learned court that pronounced the judgment in this case, induces us to notice the ground on which the}* rested their decision. It is, that the law of the State of New York is to govern this transaction, and not the law of the State of Illinois where the propert}' was situated ; and as, by the law of New York, Bates had no property in the safes at the date of the levy of the writ of attachment, therefore none could be acquired by the attachment. The theory of the case is, that the voluntary transfer of personal property is to be governed everywhere by the law of the owner's domicil, and this theory proceeds on the fiction of law that the domicil of the owner draws to it the personal estate which he owns wherever it may happen to be located. But this fiction is by no means of universal application, and as Judge Stoiy says, " yields whenever it is necessary for the purposes of justice that the actual situs of the thing should be ex- amined." It has yielded in New York on the power of the State to tax the personal property of one of her citizens, situated in a sister State (The People ex. rel. Hoyt v. The Commissioner of Taxes, 23 N. Y. 225), and always yields to " laws for attaching the estate of non-residents, because such laws necessarily assume that property has a situs entirely distinct from the owner's domicil." If New York cannot compel the personal property of Bates (one of her citizens) in Chicago to contribute to the expenses of her government, and if Bates had the legal right to own such property there, and was protected in its ownership by the laws of the State, and as the power to protect implies the right to regulate, it would seem to follow that the dominion of Illinois over the property was complete, and her right perfect to regulate its transfer and subject it to process and execution in her own way and by her own laws. We do not propose to discuss the question how far the transfer of personal property lawful in the owner's domicil will be respected in the courts of the country where the property is located and a different rule 166 HERVEY V. RHODE ISLAND LOCOMOTIVE WORKS. [CHAP. VII. of transfer prevails. It is a vexed question, on which learned courts have differed ; but after all there is no absolute right to have such transfer respected, and it is only on a principle of comity that it is ever allowed. And this principle of comity always yields when the laws and policy of the State where the property is located has pre- scribed a different rule of transfer with that of the State where the owner lives. Judgment for the plaintiff in error} HERVEY v. RHODE ISLAND LOCOMOTIVE WORKS. Supreme Court of the United States. 1876. [Reported 93 United States, 664.] The Rhode Island Locomotive Works sold to Conant & Co. a loco- motive, title to remain in the seller till full payment of the purchase price. The locomotive was delivered to Conant & Co. in Rhode Island, and was by them taken to Illinois. The agreement of sale was not re- corded in Illinois according to the law of that State. The locomotive was seized by a sheriff in Illinois as the property of Conant & Co., and was sold by him to Hervey. The Locomotive Works brought an action of replevin in the Circuit Court of the United States for Southern Illi- nois, to recover possession of the locomotive from Hervey. The court gave judgment for the plaintiff, and the defendant brought this writ of error. 2 Davis, J. It was decided by this court, in Green v. Van Buskirk, 5 Wall. 307, 7 Wall. 139, that the liability of property to be sold under legal process, issuing from the courts of the State where it is situated, must be determined by the law there, rather than that of the jurisdic- tion where the owner lives. These decisions rest on the ground that every State has the right to regulate the transfer of property within its limits, and that whoever sends property to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdiction where he resides. He has no absolute right to have the transfer of property, lawful in that juris- diction, respected in the courts of the State where it is found, and it is only on a principle of comity that it is ever allowed. But this principle yields when the laws and policy of the latter State conflict with those of the former. The policy of the law in Illinois will not permit the owner of personal property to sell it, either absolutely or conditionally, and still continue in possession of it. Possession is one of the strongest evidences of i Ace. Ames Iron Works v. Warren, 76 Ind. 512 ; Keller v. Paine, 107 N. Y. 83, 13 N. E. 635. — Ed. 2 This statement is condensed from that of the Reporter. Arguments of counsel p,re omitted. — Ed. SECT. Hi. J HERYEY V. RHODE ISLAND LOCOMOTIVE WORKS. 167 title to this class of property, and cannot be rightfully separated from the title, except in the manner pointed out by statute. The courts of Illi- nois say that to suffer without notice to the world the real ownership to be in one person, and the ostensible ownership in another, gives a false credit to the latter, and in this way works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another, to whom it is delivered, if desirous of preserving a lien on it, must comply with the provisions of the Chattel-Mortgage Act. R. S. 111. 1874, 711, 712. It requires that the instrument of conveyance, if it have the effect to preserve a mortgage or lien on the property, must be recorded, whether the party to it be a resident or non-resident of the State. If this be not done, the instrument, so far as third persons are concerned, has no validity. Secret liens which treat the vendor of personal property, who has delivered possession of it to the purchaser, as the owner until the pay- ment of the purchase-money, cannot be maintained in Illinois. They are held to be constructively fraudulent as to creditors, and the prop- erty, so far as their rights are concerned, is considered as belonging to the purchaser holding the possession. McCormick v. Hadden, 37 111. 370; Ketchum v. Watson, 24 111. 591. Nor is the transaction changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts always look to its purpose, rather than to the name given to it by the parties. If that purpose be to give the vendor a lien on the property until payment in full of the purchase- money, it is liable to be defeated by creditors of the purchaser who is in possession of it. This was held in Murch v. Wright, 46 111. 488. In that case the purchaser took from the seller a piano at the price of $700. He paid $50 down, which was called rent for the first month, and agreed to pay, as rent, $50 each month, until the whole amount should be paid, when he was to own the piano. The court held, " that it was a mere subterfuge to call the transaction a lease," and that it was a conditional sale, with the right of rescission on the part of the vendor, in case the purchaser should fail in payment of his instalments, — a contract legal and valid as between the parties, but subjecting the vendor to lose his lien in case the property, while in possession of the purchaser, should be levied upon by his creditors. That case and the one at bar are alike in all essential particulars. The engine Smyser, the only subject of controversy in this suit, was sold on condition that each and all of the instalments should be reen- larly paid, with a right of rescission on the part of the vendor in case of default in any of the specified payments. It is true the instrument of conveyance purports to be a lease, and the sums stipulated to be paid are for rent ; but this form was used to cover the real transaction, as much so as was the rent of the piano in Murch v. Wright, supra. There the price of the piano was to be paid in thirteen months, and here, that of the engine, $12,093.90, in one year. It was evidently not the intention that this large sum should bo 168 EMERY V. CLOUGH. [CHAP. VII. paid as rent for the mere use of the engine for one year. If so, why agree to sell and convey the full title on the payment of the last instal- ment? In both cases, the stipulated price of the property was to be paid in short instalments, and no words employed by the parties can have the effect of changing the true nature of the contracts. In the case at bar the agreement contemplated that the engine should be removed to the State of Illinois, and used by Conant & Co. in the pros- ecution of their business as constructors of a railroad. It was accord- ingly taken there and put to the use for which it was purchased; but while in the possession of Conant & Co., who exercised complete own- ership over it, it was seized and sold, in the local courts of Illinois, as their property. These proceedings were valid in the jurisdiction where the}' took place, and must be respected b} r the Federal tribunals. The Rhode Island Locomotive Works took the risk of losing its lien in case the property, while in the possession of Conant & Co., should be levied on by their creditors, and it cannot complain, as the laws of Illinois pointed out a way to preserve and perfect its lien. By stipulation the judgment of the court below is affirmed as to the locomotive Olney, No. 1. As to the locomotive and tender called Alfred N. Smyser, No 3, Judgment reversed. 1 EMERY v. CLOUGH. Supreme Court of New Hampshire. 1885. [Reported 63 New Hampshire, 552.] Bill in equity, under General Laws, c. 209, § 2, for discovery, and the restoration of a municipal bond for $1,000, alleged to belong to the estate of William Emery, the plaintiff s intestate, unlawfully withheld by the defendant. 2 . . . The legal domicil of said William Emery during his whole life was at Loudon, in this State. May 21, 1882, being very sick while tempo- rarily at Montpelier, Vt., he delivered to the defendant as a donatio causa mortis, the bond in question. Smith, J. It is contended on the part of the defendant that the transaction in Vermont, whereby the defendant became possessed of the bond, was a donatio causa mortis, valid as an executed contract under the laws of Vermont, and therefore valid here. The plaintiff contends that the transaction was in the nature of a testamentary dis- position of property, and if valid in Vermont as a donatio causa 1 Ace. Marsh v. Ellsworth. 37 Ala. 85 ; Delop v. Windsor, 26 La. Ann 185; and see Donald v. Hewitt, 33 Ala. 534. 2 Only so much of the case as involves the validity of the gift of this bond is here given. — Ed. SECT. III.] EMERY V. CLOUGH. 169 mortis, it is not valid in this State because it was not proved by the testimony of two indifferent witnesses upon petition by the donee to the Probate Court to establish the gift filed within sixty days after the decease of the donor. G. L., c. 193, § 17. The domicil of the parties at the time of the delivery of the bond to the defendant, and ever afterwards, to the death of the donor, being in this State, it is claimed that the neglect of the defendant to establish the gift in the Probate Court is fatal to her right to retain the bond. Every requisite to con- stitute a valid gift causa mortis under the laws of Vermont, where the parties were temporarily residing at the time of the delivery of the bond, was complied with. Holley v. Adams, 16 Vt. 206; Caldwell v. Renfrew, 33 Vt. 213 ; French v. Raymond, 39 Vt. 623. Every requis- ite, also, to constitute such a gift under the laws of New Hampshire was complied with except the post mortem proceedings required by our statute. The question therefore is, whether the lex loci or the lex domicilii governs ; and the answer to this question depends upon the legal character and effect of such gifts. A gift causa mortis is often spoken of in the books as a testamen- tary disposition of property, or as being in the nature of a legacy. Jones v. Brown, 34 N. H. 439 ; 1 Wms. Ex'rs, 686, n. 1. And such was the doctrine of the civil law. 2 Kent Com. 444, and authorities cited in note b. Such gifts are always made upon condition that they shall be revocable during the lifetime of the donor, and that they shall "revest in case he shall survive the donee, or shall be delivered from the peril of death in which they were made. The condition need not be expressed, as it is always implied when the gift is made in the extrem- ity of sickness, or in contemplation of death. It is sometimes, perhaps generally, said in the English cases that a gift causa mortis does not vest before the donor's death ; but in Nicholas v. Adams, 2 Whart. (Pa.) 17, Gibson, C. J., considered this to be inaccurate, holding that this gift, like every other, is not executory, but executed in the first instance by delivery of the thing, though defeasible by reclamation, the contingency of survivorship, deliverance from peril, or from some other act inconsistent with the gift, and indicating the donor's purpose to resume the possession of the gift. 1 Wms. Ex'rs, 686, n. 1 ; Marshall v. Berry, 13 Allen, 43, 46. A gift causa mortis resembles a testamentary disposition of propert}' in this, — that it is made in contemplation of death, and is revocable during the life of the donor. It is not, however, a testament, but in its essential characteristics is, what its name indicates, a gift. Actual delivery by the donor in his lifetime is necessary to its validity, or if the nature of the property is such that it is not susceptible of corporeal delivery, the means of obtaining possession of it must be delivered. The donee's possession must continue during the life of the donor, for recovery of possession by the latter is a revocation of the gift. But in case of a legacy, the possession remains with the testator until his decease. The title to a gift causa mortis passes by the delivery, 170 EMEEY V. CLOUGH. [CHAP. VII. defeasible only in the lifetime of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeas- ance. The property passes from the donor to the donee directly, and not through the executor or administrator, and after his death it is liable to be divested only in favor of the donor's creditors. In this respect it stands the same as a gift inter vivos. It is defeasible in favor of creditors, not because it is testamentary, but because, as against creditors, one cannot give away his property. A gift causa mortis is not subject to probate, nor to contribution with legacies in case the assets are insufficient, nor to any of the incidents of adminis- tration. It is not revocable by will, for, as a will does not operate until the decease of the testator, and the donor, at his decease, is divested of his property in the subject of the gift, no right or title in it passes to his representatives. The donee takes the gift, not from the administrator, but against him, and no act or assent on the part of the administrator is necessary to perfect the title of the donee. Cutting v. Gilman, 41 N. H. 147, 151 ; Marshall v. Berry, supra; Dot} - v. Will- son, 47 N. Y. 580, 585 ; Dole v. Lincoln, 31 Me. 422 ; Chase v. Red- ding, 13 Gray, 418 ; Basket v. Hassell, 107 U. S. 602 ; 1 Wms. Ex'rs, 686, n. 1. A valid gift inter vivos may be made on similar terms. Worth v. Case, 42 N. Y. 362; Dean v. Carruth, 108 Mass. 242; Warren v. Durfee, 126 Mass. 338. A gift causa mortis in some respects may be said to resemble a con- tract, the mutual consent and concurrent will of both parties being necessary to the validity of the transfer. 2 Kent Com. 437, 438; 1 Pars. Cont. 234. Contracts are commonly understood to mean en- gagements resulting from negotiation. 2 Kent. Com. 437. And in Peirce v. Burroughs, 58 N. H. 302, it was held that the assent of both parties is as necessary to a gift as to a contract. Prior to the passage of c. 106, Laws of 1883, the law required a will to be executed according to the law of the testator's domicil at the time of his death. Saunders v. Williams, 5 N. H. 213 ; Heydock's Ap- peal, 7 N. H. 496. The distribution of the estate of a deceased person among the heirs or legatees is to be made according to the law of the domicil of the testator or intestate at the time of his death. Leach v. Pillsbury, 15 N. H. 137. But the plaintiff's intestate did not die pos- sessed of the bond in suit. It did not vest in his administrator, and is not assets of his estate. The defeasible title which vested in the defendant at the time of the delivery was not defeated by the donor in his lifetime, and his right and power to defeat it ceased with his death. A gift causa mortis is not a testament. If it is a contract, in this case it was executed in Vermont in the life of the plaintiff's intestate. If it is not a contract, as that term is commonly understood, it is a gift which received the assent of both parties, and nothing remained to per- fect the conditional title of the defendant before the decease of the donor. The transfer of the bond being, therefore, either an executed contract or a perfected gift in Vermont, and valid under the laws of SECT. III.] MARVIN SAFE CO. V. NORTON. 171 Vermont, is valid here ; and no question arises whether our statute (G. L., c. 193, § 17) affects the contract or the remedy. That section applies to gifts made in this State. Case discharged. MARVIN SAFE COMPANY v. NORTON. Supreme Court of New Jersey. 1886. [Reported 48 New Jersey Law, 410.] On Ma}' 1, 1884, one Samuel N. Schwartz, of Hightstown, Mercer count}', New Jersey, went to Philadelphia, Pennsylvania, and there, in the office of the prosecutors, executed the following instrument : — " May 1st, 1884. "Marvin Safe Company: " Please send, as per mark given below, one second-hand safe, for which the undersigned agrees to pay the sum of eighty-four dollars ($84), seven dollars cash, and balance seven dollars per month. Terms cash, delivered on board at Philadelphia or New York, unless otherwise stated in writing. It is agreed that Marvin Safe Company shall not relinquish its title to said safe, but shall remain the sole owners thereof until above sum is fully paid in money. In event of failure to pay any of said instalments or notes, when same shall become due, then all of said instalments or notes remaining unpaid shall imme- diately become due. The Marvin Safe Company may, at their option, remove said safe without legal process. It is expressly understood that there are no conditions whatever not stated in this memorandum, and the undersigned agrees to accept and pay for safe in accordance therewith. Samuel N. Schwartz. 44 Mark — Samuel N. Schwartz, Hightstown, New Jersey. " Route — New Jersey. "Not accountable for damages after shipment." Schwartz paid the first instalment of $7 May 1, 1884, and the safe was shipped to him the same day. He afterwards paid two instalments, of $7 each, by remittance to Philadelphia by check. Nothing more was paid. On July 30, 1884, Schwartz sold and delivered the safe to Norton for $55. Norton paid him the purchase-money. He bought and paid for the safe without notice of Schwartz's agreement with the prosecu- tors. Norton took possession of the safe and removed it to his office. Schwartz is insolvent and has absconded. The prosecutor brought trover against Norton, and in the court be- low the defendant recovered judgment, on the ground that the defendant, having bought and paid for the safe bona fide, the title to the safe, by the law of Pennsylvania, was transferred to him. 172 MARVIN SAFE CO. V. NORTON [CHAP. VII. Depue, J. The contract expressed in the written order of May 1, 1884, signed by Schwartz, is for the sale of the property to him condi- tionally, the vendor reserving the title, notwithstanding delivery, until the contract price should be paid. The courts of Pennsylvania make a distinction between the bailment of a chattel, with power in the bailee to become the owner on payment of the price agreed upon, and the sale of a chattel with a stipulation that the title shall not pass to the purchaser until the contract price shall be paid. On this distinction the courts of that State hold that a bailment of chattels, with an option in the bailee to become the owner on payment of the price agreed upon, is valid, and that the right of the bailor to resume possession on non- payment of the contract price is secure against creditors of the bailee and bona fide purchasers from him ; but that upon the delivery of per- sonal property to a purchaser under a contract of sale, the reservation of title in the vendor until the contract price is paid is void as against creditors of the purchaser or a bona fide purchaser from him. Clow v. Woods, 5 S. & R. 275 ; Enlow v. Klein, 79 Penn. St. 488 ; Haak v. Linderman, 64 Penn. St. 499 ; Stadfeld v. Huntsman, 92 Penn. St. 53; Brunswick?;. Hoover, 95 Penn. St. 508; 1 Benj. on Sales (Corbin's ed.), § 446 ; 30 Am. Law Reg. 224, note to Lewis v. McCabe. In the most recent case in the Supreme Court of Pennsylvania Mr. Justice Sterrett said : " A present sale and delivery of personal prop- erty to the vendee, coupled with an agreement that the title shall not vest in the latter unless he pays the price agreed upon at the time ap- pointed therefor, and that in default of such payment the vendor may recover possession of the property, is quite different in its effect from a bailment for use, or, as it is sometimes called, a lease of the property, coupled with an agreement whereb}' the lessee ma\" subsequently be- come owner of the property upon payment of a price agreed upon. As between the parties to such contracts, both are valid and binding; but as to creditors, the latter is good while the former is invalid." Forest v. Nelson, 19 Rep. 38 ; 108 Penn. St. 481. The cases cited show that the Pennsylvania courts hold the same doctrine with respect to bona fide purchasers as to creditors. In this State, and in nearly all of our sister States, conditional sales — that is, sales of personal property on credit, with delivery of possession to the purchaser and a stipulation that the title shall remain in the vendor until the contract price is paid — have been held valid, not only against the immediate purchaser, but also against his creditors and bona fide purchasers from him, unless the vendor has conferred upon his vendee indicia of title beyond mere possession, or has forfeited his right in the propert\- by conduct which the law regards as fraudulent. The cases are cited in Cole v. Berry, 13 Vroom, 308 ; Midland R. R. Co. a. Hitchcock, 10 Stew. Eq. 549, 559 ; 1 Benj. on Sales (Corbin's ed.), §§ 437-460; 1 Smith's Lead. Cas. (8th ed.) 33-90; 30 Am. Law Reg. 224, note to Lewis v. McCabe ; 15 Am. Law Rev. 380, tit. " Con- version by Pui'chase." The doctrine of the courts of Pennsylvania is SECT. III.] MARVIN SAFE CO. V. NORTON. 173 founded upou the doctrine of Twyne's Case, 3 Rep. 80, and Edwards v. Harbin, 2 T. R. 587, that the possession of chattels under a contract of sale without title is an indelible badge of fraud — a doctrine repu- diated quite generally by the courts of this country, and especially in this State. Runyon v. Groshon, 1 Beas. 86; Broadway Bank v. McElrath, 2 Beas. 24 ; Miller ads. Pancoast, 5 Dutch. 250. The doc- trine of the Pennsylvania courts is disapproved by the American editors of Smith's Leading Cases in the note to Twyne's Case, 1 Sm. Lead Cas. (8th ed.) 33, 34, and by Mr. Landreth in his note to Lewis v. McCabe, 30 Am. Law Reg. 224; but nevertheless the Supreme Court of that State, in the latest case on the subject — Forest v. Nel- son, decided February 16, 1885 — has adhered to the doctrine. It must therefore be regarded as the law of Pennsylvania that upon a sale of personal property with delivery of possession to the purchaser, an agreement that title should not pass until the contract price should be paid is valid as between the original parties, but that creditors of the purchaser, or a purchaser from him bona fide, by a lev}' under execu- tion or a bona fide purchase, will acquire a better title than the original purchaser had — a title superior to that reserved by his vendor. So far as the law of Pennsylvania is applicable to the transaction it must determine the rights of these parties. The contract of sale between the Marvin Safe Compan}- and Schwartz was made at the company's office in Philadelphia. The contract con- templated performance by the delivery of the safe in Philadelphia to the carrier for transportation to Hightstown. When the terms of sale are agreed upon, and the vendor has done everything that he has to do with the goods, the contract of sale becomes absolute. Leonard v. Davis, 1 Black, 476 ; 1 Benj. on Sales, § 308. Delivery of the safe to the carrier in pursuance of the contract was delivery to Schwartz, and was the execution of the contract of sale. His title, such as it was, under the terms of the contract was thereupon complete. The validity, construction, and legal effect of a contract may depend either upon the law of the place where it is made or of the place where it is to be performed, or, if it relate to movable property, upon the law of the situs of the property, according to circumstances ; but when the place where the contract is made is also the place of performance and of the situs of the property, the law of that place enters into and be- comes part of the contract, and determines the rights of the parties to it. Fredericks v. Frazier, 4 Zab. 162 ; Dacosta v. Davis, 4 Zab. 319 ; Bulkle}' v. Honold, 19 How. 390 ; Scudder v. Union National Bank, 91 U. S. 406; Pritchard v. Norton, 106 U. S. 124; Morgan v. N. O., M. &T. R. R. Co., 2 Woods, 244; Simpson v. Fogo, 9 Jur. (n. s.) 403 ; Whart. Confl. of Law, §§ 341, 345, 401, 403, 418 ; Parr v. Brady, 8 Vroom, 201. The contract between Schwartz and the company hav- ing been made, and also executed in Pennsylvania by the delivery of the safe to him, as between him and the company Schwartz's title will be determined by the law of Pennsylvania. By the law of that State 174 MARVIN SAFE CO. V. NORTON. [lHAP. VII. the condition expressed in the contract of sale that the safe company should not relinquish title until the contract price was paid, and that on the failure to pay any of the instalments of the price the company might resume possession of the property, was valid as between Schwartz and the company. B\' his contract Schwartz obtained possession of the safe and a right to acquire title on payment of the contract price : but until that condition was performed the title was in the company. In this situation of affairs the safe was brought into this State, and tin- property became subject to our laws. The contract of Norton, the defendant, with Schwartz for the pur- chase of the safe was made at Hightstown in this State. The property was then in this State, and the contract of purchase was executed by delivery of possession in this State. The contract of purchase, the domicil of the parties to it, and the situs of the subject-matter of pur- chase were all within this State. In every respect the transaction be- tween Norton and Schwartz was a New Jersey transaction. Under these circumstances, by principles of law which are indisputable, the construction and legal effect of the contract of purchase, and the rights of the purchaser under it, are determined by the law of this State. By the law of this State Norton, by his purchase, acquired only the title of his vendor, — only such title as the vendor had when the property was brought into this State and became subject to our laws. It is insisted that inasmuch as Norton's purchase, if made in Penn- sylvania, would have given him a title superior to that of the safe company, that therefore his purchase here should have that effect, on the theory that the law of Pennsylvania, which subjected the title of the safe company to the rights of a bona fide purchaser from Schwartz, was part of the contract between the company and Schwartz. There is no provision in the contract between the safe company and Schwartz that he should have power, under any circumstances, to sell and make title to a purchaser. Schwartz's disposition of the property was not in conformity with his contract, but in violation of it. His contract, as construed by the laws of Pennsylvania, gave him no title which he could lawfully convey. To maintain title against the safe company Norton must build up in himself a better title than Schwartz had. He can accomplish that result only by virtue of the law of the jurisdiction in which he acquired his rights. The doctrine of the Pennsylvania courts that a reservation of title in the vendor upon a conditional sale is void as against creditors and bona fide purchasers, is not a rule affixing a certain construction and legal effect to a contract made in that State. The legal effect of such a con- tract is conceded to be to leave property in the vendor. The law acts upon the fact of possession by the purchaser under such an arrange- ment, and makes it an indelible badge of fraud and a forfeiture of the vendor's reserved title as in favor of creditors and bona fide purchasers. The doctrine is founded upon considerations of public policy adopted in that State, and applies to the fact of possession and acts of owner- SECT. III.] MARVIN SAFE CO. V. NORTON. 175 ship under such a contract, without regard to the place where the con- tract was made, or its legal effect considered as a contract. In McCabe v. Blymyry, 9 Phila. Rep. 615, the controversy was with respect to the rights of a mortgagee under a chattel mortgage. The mortgage had been made and recorded in Maryland, where the chattel was when the mortgage was given, and by the law of Maryland was valid though the mortgagor retained possession. The chattel was afterwards brought into Pennsylvania, and the Pennsylvania court held that the mortgage, though valid in the State where it was made, would not be enforced by the courts of Pennsylvania as against a creditor or purchaser who had acquired rights in the property after it had been brought to that State ; that the mortgagee, by allowing the mortgagor to retain possession of the property and bring it into Pennsylvania, and exercise notorious acts of ownership, lost his right under the mortgage as against an in- tervening Pennsylvania creditor or purchaser, on the ground that the contract was in contravention of the law and policy of that State. Under substantially the same state of facts this court sustained the title of a mortgagee under a mortgage made in another State, as against a bona fide purchaser who had bought the property of the mortgagor in this State, for the reason that the possession of the chattel by the mort- gagor was not in contravention of the public policy of this State. Parr v.Brady, 8 Vroom, 201. The public policy which has given rise to the doctrine of the Penn- sylvania courts is local, and the law which gives effect to it is also local, and has no extraterritorial effect. In the case in hand the safe was removed to this State by Schwartz as soon as he became the pur- chaser. His possession under the contract has been exclusively in this State. That possession violated no public policy, — not the public policy of Pennsylvania, for the possession was not in that State; nor the public policy of this State, for in this State possession under a con- ditional sale is regarded as lawful, and does not invalidate the vendor's title unless impeached for actual fraud. If the right of a purchaser, under a purchase in this State, to avoid the reserved title in the origi- nal vendor on such grounds be conceded, the same right must be ex- tended to creditors buying under a judgment and execution in this State; for, by the law of Pennsylvania, creditors and bona fide pur- chasers are put upon the same footing. Neither on principle nor on considerations of convenience or public policy can such a right be con- ceded. Under such a condition of the law confusion and uncertainty in the title to property would be introduced, and the transmission of the title to movable property, the situs of which is in this State, would depend, not upon our laws, but upon the laws and public policy of sister States or foreign countries. A purchaser of chattels in this State, which his vendor had obtained in New York or in most of our sister States under a contract of conditional sale, would take no title; if ob- tained under a conditional sale in Pennsylvania, his title would be good; and the same uncertainty would exist in the title of purchasers of property so circumstanced at a sale under judgment and execution. 176 CLEVELAND MACHINE WORKS V. LANG. [CHAP. VII. The title was in the safe company when the property in dispute was removed from the State of Pennsylvania. Whatever might impair that title — the continued possession and exercise- of acts of ownership over it by Schwartz and the purchase by Norton — occurred in this State. The legal effect and consequences of those acts must be adjudged by the law of this State. By the law of this State it was not illegal nor contrary to public policy for the company to leave Schwartz in posses- sion as ostensible owner, and no forfeiture of the company's title could result therefrom. By the law of this State Norton, by his purchase, acquired only such title as Schwartz had under his contract with the company. Nothing has occurred which, by our law, will give him a better title. The judgment should be reversed. 1 CLEVELAND MACHINE WORKS v. LANG. Supreme Court of New Hampshire. 1892. [Reported 67 New Hamsphire, 348.] Replevin for two machines situate in the Granite Mills in North- field, and attached as both real and personal estate by the defendant, a deputy sheriff, on a writ in favor of Denny, Rice & Co. against Ed- ward P. Parsons. The negotiations for the machines were had and completed with the plaintiffs in Worcester, Mass., by one Green, as agent for Parsons, who resided in Boston. The machines were shipped by the plaintiff from Worcester to North field, and were there set up by an employee of the plaintiff, under an agreement by which the title to the machines was to remain in the plaintiff until the entire price was paid. Parsons never paid for the machines. At the time of the Denny, Rice & Co. attachment neither they nor the defendant had notice of the plaintiff's lien. 2 Clark, J. By the terms of the contract the machines were to re- main the property of the Cleveland Machine Works until paid for. The contract was negotiated in Massachusetts, by citizens of Massa- chusetts, respecting property situated in Massachusetts. The shipment of the machines at Worcester — Parsons paying the freight from that point — made Worcester the place of delivery, and vested in Parsons all the right and interest he ever acquired in the property. The agree- ment to send a man to set up the machines at Northfield was not a condition precedent to the vesting of the conditional title in Parsons, any more than an agreement to furnish instruction as to the mode of operating the machines would have been. The written agreement i Ace. Weinstein v. Ereyer, 93 Ala. 257 ; Public Parks Amusement Co. v. Carriage Co., 64 Ark. 29, 40 S. W. 582. — Ed. 2 This statement is condensed from that of the Reporter. Arguments of counsel are omitted. — Ed. SECT. III.] CLEVELAND MACHINE WORKS V. LANG. 177 shows that the parties understood that the conditional title passed upon the shipment of the machines, by fixing the times of payment from that date. The contract was a conditional sale of chattels in Massachusetts, negotiated and completed there b}' Massachusetts par- ties, and valid by the law of Massachusetts ; and being valid where it was made, its validity was not affected by the subsequent removal of the property to New Hampshire. Sessions v. Little, 9 N. H. 271 ; Smith v. Godfrey, 28 N. H. 379 ; Stevens v. Norris, 30 N. H. 466. As a general rule, contracts respecting the sale or transfer of per- sonal property, valid where made and where the property is situated, will be upheld and enforced in another State or country, although not executed according: to the law of the latter State, unless such enforce- ment would be in contravention of positive law and public interests. A personal mortgage of property in another State, executed and re- corded according to the laws of that State, is valid against the creditors of the mortgagor attaching the property in this State, although the mortgage is not recorded here. Offutt v. Flagg, 10 N. H. 46 ; Fergu- son v. Clifford, 37 N. H. 86. A mortgagor of horses in Massachusetts, bringing them into this State, cannot subject them to a lien for their keeping against the Massachusetts mortgagee. Sargent v. Usher, 55 N. H. 287. A boarding-house keeper's lien under the laws of Massa- chusetts is not lost by bringing the property into this State. Jaquith v. American Express Co., 60 N. H. 61. Formerly by the law of Vermont a chattel mortgage was invalid against creditors of the mortgagor if the property remained in his pos- session. But it was held both in Vermont and in New Hampshire that a mortgage of personal property in New Hampshire, duly executed and recorded according to the law of New Hampshire, was valid against creditors of the mortgagor attaching the property in his possession in Vermont. Cobb v. Buswell, 37 Vt. 337 ; Lathe v. Schoff, 60 N. H. 34. In Cobb v. Buswell the property was taken to Vermont with the consent of the mortgagee, and in Lathe v. Schoff it was understood, when the mortgage was executed, that the horses mortgaged were to be removed to Vermont by the mortgagor and kept there after the season of summer travel closed. So a chattel mortgage made by a citizen of Massachu- setts temporarily in New York with the mortgaged property, if valid by the law of New York, is valid against the creditors of the mortgagor attaching the property in his possession in Massachusetts. Lang worthy v. Little, 12 Cush. 109. The law of New Hampshire respecting conditional sales has no extra- territorial force, and does not apply to sales made out of the State. Neither the parties nor the subject-matter of the contract respecting the machines were within its operation. If the conditional sale had been made in this State before the statute was enacted requiring an affidavit of the good faith of the transaction and a record in the town clerk's office, it would not have been affected by the statute. When the machines were brought to this State, there was no provision of the VOL. II. — 12 178 CLEVELAND MACHINE WORKS V, LANC. [CHAP. VIL statute for recording the plaintiffs' lien. There was no change or trans- fer of title in this State, and the title of the plaintiffs, valid a°ainst creditors under a contract completed in Massachusetts, was not de- stroyed by the removal of the property to New Hampshire. Smith v. Moore, 11 N. H. 55, cited by the defendant as sustaining the position that the plaintiffs' lien was destroyed because there was no law in this State providing for a record in such a case, is an authority against the defendant. In that case the property was in this State when the mortgage was made, the mortgagor residing out of the State. The court say, * 4 lf the property had been situated out of the State when the mortgage was made, and the mortgage had been valid ac- cording to the law of the place, a subsequent removal of the property to this State would not have affected its validity," citing Offutt v. Flagg, 10 K H. 46. Conditional sales were valid in this State without record until Janu- ary 1, 1886. McFarland v. Farmer, 42 N. II. 386; Holt v. Holt, 58 N.'h. 276 ; Weeks v. Pike, 60 N. H. 447. The statute of 1885, c. 30, had no application to contracts between parties residing out of the State, and made no provision for recording such contracts. The fact that the contract is not within the statute is an answer to the position that the plaintiffs' title is to be tested by the law of New Hampshire. The attachment of the real estate gave the defendant no possession of or right of property in the machines. Scott v. Manchester Print Works, 44 N. H. 507. ~By attaching them as personal property, the defendant claims to hold the possession and property in them, as the property of Parsons, for the benefit of the attaching creditors. If Par- sons had an attachable interest subject to the plaintiffs' lien, the defend- ant's claim to hold the entire property under the attachment entitles the plaintiffs to maintain replevin, if they have any title to the machines and there is no estoppel. As between the plaintiffs and Parsons, the machines were the property of the plaintiffs. They were never the property of Parsons. He was simply a bailee, and never claimed to own them. "Judgment and execution liens attach to the defendant's real, in- stead of his apparent, interest in the property. It follows from this that the sale made under such a lien can ordinarily transfer no interest beyond that in fact held b} r the defendant when the lien attached, or acquired by him subsequent!} - thereto and before the sale." Freem. Ex., § 335. A purchaser at a sheriff's sale, there being no estoppel, acquires no title to property not belonging to the debtor. Bryant v. Whitcher, 52 N. H. 158. An attaching creditor is not in the position of a purchasei for a valu- able consideration without notice of any defect of title. The defendant, and the creditors of Parsons whom he represents, do not occupy the relation of bona fide vendees or mortgagees for value without notice. They stand no better than Parsons, who never owned or claimed to own the machines. Their claim to hold the property against the plaintiffs' SECT. III.] KNOWLES LOOM WORKS V. VACHER. 179 title is based upon Parsons's ownership, and not upon any attempted transfer of title by him to them ; and as he had no tale they took noth- ing by the attachment. , , The ease has no analogy to an attachment of property to winch the debtor has a voidable title valid until rescinded (Bradley v. Obear, 10 N H 477), or to the numerous class of cases where the debtor once had a valid title which he has conveyed or transferred m fraud of ^tfpLons had no title to the machines, and as no legal or equitable ground of estoppel to the assertion of the plaintiffs' title is shown, the plaintiffs are entitled to judgment. y Judgment for the plaintiffs. 1 KNOWLES LOOM WORKS v. VACHER. Supreme Court, New Jersey. 1895. [Reported 57 New Jersey Law, 490.] This suit relates to the title of ten silk looms which, about August 1st, 1893, were in the possession of the defendants, and were then replevied by the plaintiff, and returned under bond to the defendants. ' The value of the looms was then $1,487.50, which amount, with in- terest thereon, from August 1, 1893, the plaintiff will be entitled to recover if it be entitled to a judgment. The looms were originally the property of the plaintiff, a Massachusetts corporation, located in Worces- ter, Massachusetts, and were delivered by it to the Paris Silk Com- pany a New Jersey corporation, located in Paterson, under a contract for the sale of them made orally in the city of New York between an aaent of the plaintiff and an agent of the Paris Silk Company. Ac- cording to the terms of the contract the looms were to remain the property of the plaintiff until they were fully paid for. and were to be paid for in instalments, at periods ranging from thirty days to six months after delivery. This contract was never formally reduced to writing, but its terms can be gathered from letters written to each other by the parties m Worcester and Paterson, which refer to the oral contract. In pursuance of the contract, the looms were delivered by the plain- tiff to the silk company, in Paterson, in the latter part ol May, 1893, and shortly afterwards notes were given by the silk company to the plaintiff for the amount of the purchase-money. Those notes have never been paid, and after the maturity of the note first due the pla.n- i Ace c; A GravC. ..Taylor BroB. Iron-Works Co. 66 Fed. 686; Drew ..Smith, 59 Me 393' I5arn.it v. Kelley, 66 N't. 515, 29 Atl. 809; Mershon v. Moors, 76 Wis. 502. See Ensley L. Co. v. Lewis, 121 Ala. 94, 25 So. 729. - Ed. 180 KNOWLES LOOM WOKKS V. VACHER. [CHAP. VII. tiff tendered them all back to the silk company before issuing the writ in this cause. On July 5, 1893, the looms being in the possession of the Paris Silk Company, at Paterson, were mortgaged by that company to the defendant Hoguet, to secure a pre-existing debt due from the company to Hoguet, Mr. Hoguet having agreed with the company that whatever he realized from the mortgage he would distribute among the creditors of the Paris Silk Company proportionately. At that time the silk company was insolvent, and Hoguet knew it, but he had no notice that the looms were not the property of the Paris Silk Company. The title which the defendants now set up depends upon that mortgage. Whether, under these circumstances, the plaintiff or the defendants are entitled to the judgment of the court, is a question reserved and cer- tified to the Supreme Court for its advisory opinion. Van Syckel, J. 1 On behalf of the defendants, it is insisted that the sale by the plaintiff to the silk company, being a conditional one, was void as against the mortgage of Hoguet by virtue of the provisions of the act of May 9, 1889, entitled " An act requiring contracts for the conditional sale of personal property to be recorded." Pamph. L., p. 421. . . . The silk company was the party contracting to buy, and was a resi- dent of this State, located at the city of Paterson, in the county of Passaic. The contract of sale was not recorded, as required by the act of 1889. Two points are involved : First, whether the statute of 1889 is applicable to this case, in view of the fact that the contract of sale was made in the State of New York ; and, second, whether the defendant Hoguet, in taking a mortgage to secure a pre-existing debt due from the Paris Silk Company to him, became a mortgagee in good faith. The act of 1889 directs the contract to be recorded in the county where the buyer resides, if a resident of this State at the time of the execution of the contract, and if not a resident of this State, then in the county where the property shall be at the time of the execution of such instrument. The manifest purpose of the act is to render inefficacious the con- ditional sale of all goods held in this State where the contract of sale is not recorded. There is an implied mandate in the act that the contract of sale shall be in writing, otherwise it could not be recorded and the act would be futile. The situs of the property, and not the lex loci contractus, determines the validity of such sales. The contract in this case was made in New York, but the property was to be delivered, and was delivered to, and held by the purchaser in this State. Great contention and uncertainty as to the title to personal property 1 Part of the opinion is omitted. — Ed. SECT. III.] MASURY V. ARKANSAS NATIONAL BANK. 181 would be produced if purchasers and mortgagees were bound to ascer- tain whether the vendor or mortgagor acquired title in another State before the}' could contract with safety in reference to it. Judicial decision in this State has been hostile to such an interpre- tation of the law. Marvin Safe Co. v. Norton, 19 Vroom, 410. Where the situs of personal property is in this State, it is subject to our statutoiy provisions in the adjudications regarding it in our own courts, in a suit to which a citizen of this State is a party. The force of our statutes is recognized in Varnum v. Camp, 1 Gr. 326, and in Bentley v. Whittemore, 4 C. E. Gr. 4G2. "No one can seriously doubt that it is competent for any State to adopt such a rule in its own legislation, since it has perfect jurisdiction over all propert} - , personal as well as real, within its own territorial limits. Nor can such a rule, made for the benefit of innocent pur- chasers and grantors, be deemed justly open to reproach of being founded in a narrow or selfish policy." Story, Confl. L., § 390. It seems clear that the New Jersey statute must dominate this con- troversy. . . . The Circuit Court should be advised that the subsequent mortgagee is entitled to judgment. 1 MASURY /<. ARKANSAS NATIONAL BANK. Circuit Court of the United States, E. District Arkansas. 1898. [Reported 87 Federal Reporter, 381.] This is a bill in equity b}* Grace Masuiy against the Arkansas Na- tional Bank and others to cancel a sheriff's sale of shares in a corpo- ration, and to declare and foreclose a lien on the stock. The cause was heard on demurrer to the bill. Williams, District Judge. 2 The only questions involved are whether, under the statutes of Arkansas, a seizure of shares of the capital stock of a corporation existing under the laws of that State, hx virtue of a writ of attachment, or under execution, takes precedence over a prior transfer or pledge, not transferred on the books of the corporation, nor filed for record in the office of the county clerk of the county in which the corporation transacts its business, and whether the laws of this State govern such a transfer, if made in another State. As to the last proposition, learned counsel for complainant claim that Black v. Zach arie, 3 How. 483, is conclusive that the laws of New Voile, where the" transfer was made, and not the laws of Arkansas, of which State the company was a corporation, control. The question involved in that 1 Arc. In re Legg, 96 Bed. 326 ; !><• la Vergno R. M. Co. '■. B. It., 51 La. Aim. 1733, 2', So. 455.— Ed. a Part of the opinion <>n\y is given. — Ed. 182 IN EE QUEENSLAND MERCANTILE AND AGENCY CO. [CHAP. VII. suit was not that of a transfer of shares, but an assignment of the equity of redemption in stock previously assigned and delivered as a pledge. The court say : " We admit that the validity of this assignment to pass the right to Black in the stock attached depends upon the laws of Louisiana [the domicil of the corporation], and not upon that of South Carolina [where the assignment was made]. From the nature of the stock of a corpora- tion, which is created b} - and under the authority of a State, it is necessa- ril} - , like every other attribute of the corporation, to be governed by the local law of that State, and not by the local law of any foreign State." Judge Lowell, speaking of the same subject, says : " Whatever the general principles of international law in relation to assignments of personal claims may be, the validity of a transfer of stock is governed by the law of the place where the corporation is created." Lowell, Stocks, § 50 ; Hammond v. Hastings, 134 U.S. 401, 10 Sup. Ct. 727 ; Green v. Van Buskirk, 7 Wall. 140. I am therefore of the opinion that, unless the transfer of this stock is valid under the laws of Arkansas, the State which created the cor- poration, the laws of the State where the transfer was actualby made cannot control. In re QUEENSLAND MERCANTILE AND AGENCY COMPANY. Chancery Division. 1891. [Reported [1891] 1 Chancery Division, 536.] This was the hearing of two summonses in the winding-up in Eng- land of an Australian company, which was also being wound up in Australia. One summons was by the Union Bank of Australia, Limited, an English company, that the English liquidator might be ordered to trans- fer to them the sums of New Consols and cash standing in his name, representing the proceeds of calls in his hands in respect of shares in the compan}- being wound up, numbered 1 to 2,500 inclusively. The other summons was Iry the Australasian Investment Company, that out of the sum of £24,730 12s. 2d. New Consols and any cash in his hands or in court representing money received from Scotch share- holders in the company in liquidation, the sum of £12,666 4s. 5d. might be paid to the applicants in priority over all other payments out of the said funds. This summons also asked that, if necessary, a case might be remitted to the Court of Session in Scotland, under the statute 22 & 23 Vict. c. 63, § 1, for the purpose of ascertaining the law of Scotland relative to matters of Scotch law involved. SECT. III.] IN RE QUEENSLAND MERCANTILE AND AGENCY CO. 183 The Queensland and Mercantile and Agency Company was registered in Brisbane, and for several years before it was wound up carried on business in Queensland. The bankers of that company were the Union Bank of Australia, who, on the 28th of June, and the 3d of September, 1866, took from the Queensland Company two debentures of £10,000 and £50,000 respectively in similar form, whereby the payment of such debentures was made a first charge on the uncalled capital made re- ceivable in respect of shares numbered from 1 to 2,500 in the Queens- land Company, upon each of which shares £50 had been paid up and £50 more remained uncalled. In December, 1886, the company passed resolutions calling up the balance of £50 per share, payable by equal instalments in February, April, June, and August, 1887, respectively. Notice of the call was given to the shareholders, but they never had any notice of the charge effected by the said two debentures in favor of the Union Bank. On the 24th of February, 1887, a Scotch company, called the Australasian Investment Company, commenced an action in Scotland against the Queensland Company for negligence, and immediately afterwards, on the same day issued a Scotch process known as arrestment on the de- pendence of the action, against numerous holders of the Queensland Company's shares who were resident in Scotland, the effect of which was that the calls payable by them to the Queensland Company were arrested in their hands, and the Australasian Company (the Pursuers in the action) became secured creditors on the funds so arrested for the amounts for which they should establish their claim in the action. By the terms of the order of arrestment the sums arrested were re- quired " to remain in the hands of the arrestees under sure fence and arrestment at the instance of the Pursuers, aye and until sufficient caution and surety be found acted in the books of Council and Session that the same shall be made forthcoming to the said Pursuers as ac- cords of law conform to the summons in all points." In the months of May, July, and August, 1887, judgments were recovered in England in twenty-seven actions by one Drake and others against the Queensland Company. On the 2d of September, 1887, the Union Bank commenced an action in England against the Queensland Company in respect of money due to them other than that secured by the two debentures, and on the 7th of September an order was made in all those actions for the appointment of a receiver to get in the calls from the shareholders in the Queensland Company. On the 28th of October, 1887, an order was made in Queensland for the winding-up of the Queensland Company, and thereupon the £60,000 secured by the two debentures above mentioned became payable. On the 14th of January, 1888, a similar order was made in England. By various proceedings and orders in England and in Scotland, to which it is not necessary to refer in detail, the Australasian Company wen; restrained from further prosecuting their action in Scotland, but with- out prejudice to the security, if any, upon the amounts payable by the 184 IN RE QUEENSLAND MERCANTILE AND AGENCY CO. [CHAP. VII. Scotch shareholders in the Queensland Company in respect of the said calls which the Australasian Compan}- had acquired b}- the proceedings taken by them in Scotland ; and the official liquidator received from the receiver, or himself collected, and now held on separate accounts the amounts paid for calls by the Scotch and English shareholders respectively, the receipts from the Scotch shareholders being about £24,730. By proceedings in the winding-up in Queensland the amounts due from the Queensland Company to the Union Bank were ascertained at upwards of £74,000 ; but it was admitted that, after allowing for securities held by them, their claim was reduced in round figures to £31,000. On the hearing of the summonses the Union Bank asked for an order upon the official liquidator to transfer to them on account of their claim the sums he has thus received in respect of the shares numbered 1 to 2,500, including those received from the Scotch share- holders. The Australasian Company claimed, on the other hand, to be first paid out of the moneys received from the Scotch shareholders, £12,66G 4s. 5c?., which had been found in the English winding-up to be the amount of the claim due to them. The plaintiffs in the actions of Drake and others against the Queensland Company also asserted a claim to the funds in hand against both the Union Bank and the Australasian Company, upon the ground that as against them the debentures were inoperative. The only evidence of the law of Scotland bearing on the matters in question was contained in an affidavit made in the matter by John Blair, writer to the signet, a member of the firm in Edinburgh who were the solicitors of the Australasian Investment Company. The effect of it is stated in the judgment. 1 North, J. (after stating the facts as above, and reading parts of Mr. Blair's affidavit, continued). It is not satisfactory to me to find that the only evidence in this case of the Scotch law is contained in an affidavit by Mr. Blair, the legal adviser of the Australasian Com- pany, and that, although there is no evidence contradicting it, the Union Bank state that they will, if necessary, contend before the House of Lords that such affidavit lays down the Scotch law incor- rectly. This may be open before their Lordships on appeal, but it is not open before me, for the question of Scotch law is here merely a question of fact, upon which the evidence is all one way, and the Union Bank have not asked me to give them an opportunity of going into further evidence or to send a case for the opinion of the Scotch court. By such evidence it is established that there is, by virtue of the arrestment, what is equivalent to an actual assignment of the calls in question duly intimated, and that this, by the law of Scotland, is preferable to and has priority over the assignment of the Union Bank, of which, though prior in time to the arrestment, no intimation had 1 The tenor of the debentures and arguments of counsel are omitted. — Ed. SECT. III.] IN RE QUEENSLAND MERCANTILE AND AGENCY CO. 185 been given at the date when the assignment by arrestment became complete ; and this is what I feel bound to decide. It was contended on behalf of the Union Bank that the claim of the Australasian Company could only be valid as against " the sums at- tached," which was said to be what would remain of the calls after satisfying what was due to the Union Bank ; but this is quite incon- sistent with the language of the arrestment, which applies specifically to the whole sum due for calls from each of the shareholders on whom the arrestment was served. It was also said that after the assignment to the Union Bank all that the Queensland Company had left was the surplus remaining over after paying the bank, that the rest of the calls belonged to the bank, and that it was contrary to principle and author- it}* to hold that a process of law against the debtor could affect what was the property of the creditor, the Union Bank. But in the present case I have not to deal with a mere process of law, such as a judgment or garnishee order, but with what is established as a fact to be equiva- lent to an actual assignment, and which on the evidence I must treat in exactly the same way as if such an assignment had been actually executed and intimated. But the Union Bank also put theirclaim to priority over the Austra- lasian Company in another way. They say that whatever the position of matters might have been if all the parties to these transactions had been domiciled in Scotland, the facts are not so ; that the Queensland Company were creditors in respect of the debt due from the share- holders for calls ; that this company was domiciled in Queensland, and therefore the validity of the assignment b}* them to the Union Bank depends upon the law of Queensland, and not on the law of the Scotch debtor's residence ; that by the law of Queensland (which is admitted to agree with that of England), no notice or intimation was necessar}' ; and that a transfer of personal or movable property, valid by the law of the owner's domicil, is valid wherever the property is situated. They rely on the principle concisely expressed in the maxim, Mobilia sequuntur personam, and more fully stated in numer- ous authorities, of which it is sufficient that I should refer to one, viz., the judgment of Lord Loughborough in Sill v. Worswick, 1 H. Bl. 690. He says this : " It is a clear proposition, not only of the law of Eng- land, but of every country in the world, where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal propert}' has no visible locality, but that it is sub- ject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it, either by succession or the act of the party, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession." In my view, after full consideration, it is not necessary for me to 186 IN RE QUEENSLAND MERCANTILE AND AGENCY CO. [CHAP. VII. express an}- opinion on this interesting and difficult question ; for, assuming the principle above stated to include such a case as the present, there is another equally well-known rule of law, viz., that a transfer of movable property, duly carried out according to the law of the place where the property is situated, is not rendered ineffectual by showing that such transfer as carried out is not in accordance with what would be required by law in the country where its owner is domi- ciled. To give an instance. According to Scotch law, it is necessary, in order to give a charge on corporeal movables, that they should be delivered to and placed in the possession of the creditor. But, if a domiciled Scotchman resident in London gave a duly registered bill of sale of the furniture of his house, that would be a complete and effec- tual transfer of the property without its being delivered to the creditor, notwithstanding that such a disposition of furniture in Scotland would have been ineffectual without delivery. To apply this to the present case, the Queensland Company did certain acts (by commission or omission), by virtue of which certain legal rights arose in Scotland, having identically the same effect in all respects (according to the evidence before me) as if the Queensland Company had on the date of the arrestment executed an assignment of the calls in question to the Australasian Company, and such assignment had been forthwith intimated to the persons in whose hands the calls were arrested. Such an assignment would, according to the evidence, clearly have been preferred to another assignment bearing, indeed, an earlier date, but not completed by intimation; and, in my opinion, the right of those who have acquired an unexceptionable title, and have recovered the property according to the law of the country where it is found and arrested, cannot be defeated by showing that if the property had been elsewhere the title of the Union Bank might have been the preferable one. I speak of the Australasian Company as having recovered the calls, although they have, as matter of convenience, been received by the official liquidator, because they would have actually received them if the action had not been stayed, and the rights of the parties cannot be affected by the court having stayed the action, as by the order staying the action their right or security was expressly left unpreju- diced. The terms of the order will require some care, in dealing with the figures ; but in substance I accede to the summons of the Australasian Company, and only direct the payment of the balance of the Scotch calls to the Union Bank. There will be an order on both summonses, and the Australasian Company and Union Bank will add their costs to their respective securities. The official liquidator's costs must be retained bv him out of the calls in his hands. SECT. III.] CARTER V. MUTUAL LIFE INS. CO. 187 CARTER v. MUTUAL LIFE INSURANCE COMPANY. Supreme Court of the Hawaiian. Islands. 1896. [Reported 10 Hawaiian Reports, 559.] Frear, J. 1 This is an action on a policy of insurance issued by the defendant company upon the life of Henri G. McGrew for 85,000, pay- able upon his death to " Alphonsine McGrew, wife of Henri G. McGrew ... if living, if not living to his executors, administrators, or assigns." The company stands ready to pay the money, but desires that it be first judicially determined who is entitled to it, — whether Alphonsine Mc- Grew or the administrator of the insured. The doubt upon this point is occasioned by the fact that the insured prior to his decease obtained a decree of divorce from his wife on the ground of adultery, the validity and effect of which decree are questioned. The contract of insurance was entered into in the Hawaiian Islands : the policy is dated September 14, 1892 ; it was issued to Henri G. McGrew upon his application ; he retained possession of it and paid all premiums upon it ; he died October 22, 1894 ; at the time of enter- ing into the contract and until- his death he was a subject and resident of and domiciled in these islands ; J. O. Carter is the duly appointed administrator of his estate : all conditions and requirements necessary to be performed or complied with by the decedent or plaintiff have been performed and complied with. The former decision in this case was filed August 15, 1895. On October 4, 1895, new counsel for the defendant filed a motion for a rehearing, based on a number of grounds therein set forth. . . . The first point relied on is, that the court manifestly erred in con- struing the policy as a Hawaiian contract, whereas it appears upon its face to be a New York contract. . . . And this seems to be the source of misunderstanding in this case. Construction is confused with own- ership. If A had possession of certain personal property under a con- tract it might be a question of the construction of the contract whether A's interest was in his own right, and, if so, what that interest was, or if A had died, it might be a question of construction, whether the prop- erty should then pass to A's representatives or to some one else. These questions would be decided by the law of the place of contract. But suppose the contract were construed as having passed the property ab- solutely to A and his representatives, the further question who wrere the representatives would be one, not of construction, but of distribu- tion, to be solved by the law of the place, not of the contract, but of A's domicil. Or, suppose A had previously assigned the property, his representatives would not take at all, — not because of an erroneous 1 The first two paragraphs <>f the opinion are taken from the original opinion Part uf the- opinion i> omitted. — Bd. 188 CARTER V. MUTUAL LIFE INS. CO. [CHAP. VII. construction of the contract by the law of doinicil or any other law, but because the ownership of the property had changed, — ■ a question which might necessarily be determined by- some other law, as the law of the place of assignment, if that were a different place. So, if A had be- come bankrupt and the property had become assigned by operation of law to his assignee in bankruptcy. So, if A had married and the prop- erty had passed by law to her husband. So, as in this case, if a di- vorce had been obtained against her, and the property had thereupon passed to her husband by operation of law. To allow an assignee of a contract to recover, is not to vary the terms of the original contract, but to enforce the terms of the contract of assignment. It is further argued, that, if the mere fact that the policy is a New York contract is not sufficient to require the New York law to govern in determining the question of assignment by operation of law, as dis- tinguished from the question of construction, yet it is expressly pro- vided in the policy that the New York law should govern, and it was competent for the parties to so agree. Let us assume that such an agreement, if made, would have been valid ; . . . this could not mean that the New York statutory law should govern every question that might subsequently arise in relation to the polic} T , — its ownership, the court in which or the procedure by which it should be enforced, the persons who would be the insured's representatives in case he survived his wife, etc. Indeed, New York law must be assumed to include private international law, by which the effect of a divorce upon the ownership of personal property is determined by the law of the place of divorce, at least if that is also the place of domicil — the New York statute upon the subject so far as it relates to personal property being presumed to apply only to divorces granted in that State. In consider- ing this question, it should be borne in mind that the specific provision in the policy relating to assignment is not involved. The company, not having brought the widow into court by inter- pleader, is in the unfortunate position of being subjected to two suits, — one by the administrator here, the other by the widow in California. It must now rely upon the assumption that the two courts will take the same view of the law. There can be no doubt that the same law should govern whether the action is brought in Hawaii, California, or New York. In our opinion, that law is the law of the place of domicil and divorce. We can only assume that the California court will take the same view. . . . The next point is, that section 1331 did not apply to the property in question, because at the time of the divorce neither the wife nor the policy were in this county or within the jurisdiction of the court, the wife because she had gone to California, the policy, because, although it remained here in the possession of the husband, being personal property it followed its owner, the wife, in contemplation of law. We presume that by this is meant, not that personal propert}' follows its owner wherever the latter may happen to go temporarily, but that it is SECT. III.] BADIN V. HEIRS OF AYME. 189 governed by the law of the owner's domicil, or residence animo manendi. Now there was no proof whatever that the wife in this case intended to change her domicil, which had previously been here, and which, in the absence of proof to the contrary, would, at least after so short an ab- sence, be presumed to continue here, to say nothing of the rule that the wife's domicil is 'that of her husband, except under certain special circumstances. But however that ma}' be, both parties were undoubt- edly domiciled here when the divorce proceedings were commenced and when the court acquired jurisdiction over them, and that was sufficient so far as the question of domicil was concerned. The court having acquired jurisdiction under these circumstances the incidents of the divorce would follow according to the law of the place of divorce. The motion for the rehearing is denied. mrfr- BADIN v. HEIRS OF AYME. Court of Cassation, France. 1815. [Reported 5 Sirey Recueil Ge'ne'ral I. 47.] Marthe Ayme, French by origin, had left her native countrj T to live at Avignon, then under the sovereignty of the Pope. She made at Avignon, on the 5th of July, 1784, to Marie Bouillet-Badin, a cumula- tive gift of all her property then owned or to be acquired, reserving the use of it during life and the sum of 200 francs at her own sole disposal. Shortly after, Marthe Ayme returned to France, and on the 11th of May, 1785, she made there in favor of her nephews a new gift of all property then owned by her. and also a will by which she created them her heirs. In the course of the same year she brought suit against Marie Bouillet- Badin for revocation of the gift of July 5, 1784, on the ground that it included after-acquired property, contrary to the French ordinance of 1731. She died June 4, 1786. " Marie Bouillet-Badin averred that the gift was valid, because made in a country where the ordinance was not in force, but only the Roman law, which permitted such gifts even outside marriage, provided the donor do not entirely despoil himself, that is, retain full power over some property. Here the entire use had been reserved for life, to- gether with absolute power over 200 francs. The property in question was situated in France. The Tribunal of First Instance, the 16th Tliermidor, Year 6, adjudged the gift valid. On appeal the Civil Tribunal of the Department of the Gard, 5th Frimaire, Year 8, reversed the judgment. Dame Badin brought error in Cassation. 1 1 Tin's statement of facta is condensed from that of the Reporter. — Ed. 190 MAHLER V. SCHIRMER AND SCHLICK. [CHAP. VII. The Coitrt. The principle here involved is that prohibitory laws, that is, such as forbid the transfer of property, either wholly or in part or under specified circumstances, constitute statutes real which directly affect the property, and restrain the proprietor's liberty of disposal whatever be his domicil. Of this sort is Article 15 of the Ordinance of 1731 ; in fact, this article clearly belongs to the class of statutes real, since it forbids gifts inter vivos (except when made in a marriage con- tract) of property in possession and after acquired. The judgment therefore should annul, as it has done, the gift in litigation, since it is a cumulative disposition of property both present and future, so far as it covers property situated in France and therefore subject to the Ordi- nance of 1731. Appeal rejected. MAHLER v. SCHIRMER AND SCHLICK. Reichs-Oberhandelsgericht. 1872. [Reported 6 Entscheidungen des R. 0. H. G. 80.] The Elbe steamboat " Borussia," belonging to the shipowner Charles S. of Torgau, la}- at anchor in Dresden in May, 1868, when she was attached at suit of the firm of Schirraer & Schlick of Leipzig on account of a loan ; the next September execution was issued against the vessel b}' authorit\* of the same court for the same firm upon a claim on a bill of exchange, but the sale of the vessel was stayed. Against this execution the petitioner Mahler intervened. The "Boi'ussia," as he alleged, on Michaelmas, 1865, was mortgaged to him at Torgau in the method there required by law, that is, by the minute of a notary upon the bill of exchange, for a debt of 5000 thalers. The judge of first instance admitted the binding force of the alleged mortgage ; the Court of Appeal denied its force in the Kingdom of Saxony. The R. O. H. G. agreed with the judge of first instance for the following reasons. The Court. Section 10 of the Saxon Civil Code provides: " The title to movable and immovable property, as well as the right of pos- session, shall be decided according to the law of the situs of said prop- erty." The previous lively dispute whether in the case of movables the law of the domicil of the owner or the law of the situs of the property should prevail is settled by this section in favor of the second alterna- tive, whilst the Prussian, Austrian, and French codes are based upon the acceptance of the first. But the place where the propert}- is at the time of the judicial decision is not all-important for the application of section 10 ; both lower courts have conclusively proved this. Neither according to the letter nor to the spirit of the statute ma}' it be held that, by judicial determiniation of the title to property, a conveyance which has previously been executed in accordance with the local lex SECT. III.] MAHLER V. SCHIRMER AND SCIILICK. 191 rei sitce at the place where the thing then was may be regarded as a mere nullity because it is not according to the law of the forum. For the universal rule (especially recognized for Saxon law by von Sieben- haar in his Commentary, Vol. 1, p. 49, note 2) is that all juristic facts are to be adjudged according to the law of the place where they oc- curred. Legal acts, therefore, when they are in the category of already accomplished facts in one country, are recognized as such in every other country. The situation will of course be altered if a third person acquires an independent title in the thing at the place to which it is brought later ; for the determination of such a title the local law governs, according to section 10 of the Code. And if the right ac- quired within the conntry conflicts with that before acquired abroad, the local law prevails with respect to the substantive right. The Saxon judge may therefore be in a position to subject to the claims of his local law the decision of lawsuits about movables ; but the admissibility of such subjection always depends on the actual as- sumption that the things have come within the jurisdiction of the Saxon law. The things must be situated within Saxony. But the mo- mentary position is not entirely decisive ; there are things which are constantly changing their position without thereby losing their legal relation to the place from which they started. This is especially true of the most important instruments of transportation, ships and railroad trains. During their journeys they touch at foreign places only in pass- ing, with the intention of returning to the place where their legal rela- tions are situated. The recognition of this place of departure as the place that governs their legal relations seems to be enjoined by practi- cal necessity. Without this recognition intercourse between different countries would not be practicable, and an insecurity of rights would ensue in opposition to the necessities of modern law. This doctrine is already established with regard to sea-going vessels; the same prin- ciple must however by analog}' apply in substance to river boats. Vessels form (as von Goldschmidt has strikingly remarked, Handbook of Commercial Law, § 60, p. 527) as it were the immovables of com- merce and are in many ways subject to the law of immovables. They have, according to this theory, in the maritime clauses of the Commercial Code, a fixed situation like real estate, a quasi-domicil, namely the home port, which constitutes the juridical centre of the outfit (Gold- schmidt, op. cit., note 8). From this point of view the " Borussia " had the centre of her legal relations in the kingdom of Prussia. The boat, as has been said, lay at anchor in Dresden while passing on a longer voyage, when at suit of Schirmer & Schlick, the defendants in the intervention, she was attached, in May, 1868, by the Saxon judge. Her owner was an inhabitant of Torgau, and a Prussian subject. The complete execution, in September, 1868, was only made possible by reason of the previous attachment of the vessel in Dresden, and I his legal act enforced by the defendant was probably the only thing that kept the vessel in the Saxon dominions, as it probably also required 192 MAHLER V. SCHIRMER AND SCHLICK. [dlAP. VII. the further stay of the owner in Dresden. The ship's papers were all issued by authority of the Prussian State. The ship belonged to that State with respect to its juridical relations. This is the more certain that according to the treaty concluded between Prussia and Saxony with reference to the navigation of the Elbe it was expressly provided that Prussian vessels, even while they were within Saxony, should still form part of the Prussian merchant-marine (Art. iv. "of the Elbsehiff- fahrtsakte of June 23, 1821 ; Ges.-Sammlung 1823, p. 95 : — Section 10 of the Additionalakte of April 13, 1844; Ges.-Sammlung 1844, p. 284 : — Verordnung of February 16, 1866, as to the form of the manifest, etc. ; Ges.-Sammlung, 1866, p. 49, at the words, " Each vessel must be plainly marked with the name of the place where she belongs," etc.) — a relation that according; to section 11 of said Additionalakte is not lost by a change of situation of the vessel for the time being, but only when upon withdrawal of the ship's papers issued by one State the vessel joins the marine of the other. The acts furnish no support for the contention that a change has taken place in the registry of the " Borus- sia." It cannot be supposed that the vessel at the time of the execution had its location in Saxony in the sense of section 10 of the Civil Code. The situs of the legal relations of the vessel at the time of the attach- ment was likewise not in Dresden ; and that process was therefore not calculated to subject the vessel to the exclusive jurisdiction of the Saxon law. This was recognized by von Siebenhaar (op. cit., p. 49) ; in accordance with the constant practice he clearly holds that in the case of movables the law that governs is not under all circumstances the law of the place where they happen to be for the moment, but rather that of the place where, according to the intention of the owner, they are destined to remain ; a case which arises especially when goods merely pass through Saxony in the post or on a railway, or when foreigners while on a journey bring goods with them into Saxony. The situs of all legal relations of the vessel " Borussia " was and con- tinued to be in Prussia, even though its owner had not yet returned home. Therefore by reason of section 10, so much the less can the validity of the mortgage claimed b} r the intervenor be denied, because even from the standpoint of the Saxon law no real conflict is presented between the successive interests in the vessel. SECT. III.] KEYHER AND SCHINTZ V. GAUTREAU ET COMPAGXIE. 193 REYHER & SCHINTZ v. GAUTREAU ET COMPAGNIE. Court of Appeal of Brussels. 1876. [Reported Pasicrisie Beige, 1877, 2, 12.] Gautreau & Cie. of Valparaiso obtained from the President of the Tribunal of Commerce of Antwerp, as creditors of the California Co. of Chili, authority to attach in the Port of Antwerp a cargo of nitrate of soda which had been laden in Peru on board the ship "• Pride of Devon*" Reyher & Schintz of Liverpool had bought at the Liverpool Exchange part of the cargo ; and they brought suit in the Civil Tri- bunal of Antwerp to annul the attachment. On July 14, 1876, the Tribunal gave judgment 1 sustaining the attach- ment. Appeal. The Court. This court is not dealing with the order of the Presi- dent of the Tribunal of Commerce of Antwerp, which authorized the attachment of the cargo of the " Pride of Devon," but with the petition for annulling said attachment, which has been effected in accordance with said order. . . . Movables found on Belgian territoiy are governed, when considered individually, by Belgian law. The possessor in good faith, especially, is protected against a mere replevin suit b}- articles 2279 and 2280 of the Civil Code. This is exactly the case of the appellants Reyher & Schintz. They prove that they bought the cargo of the " Pride of Devon"' on May 22, 187G, of Cox Brothers, brokers, at Liverpool, deal- ing in their own name, and that they regularly paid the purchase-money. As indorsees of the bill of lading (and to that extent of the goods) they sent it to Messrs. Kniewitz-Bleeckx & Cie., of Antwerp, to whom the goods were delivered as fast as landed, after the attachment. The appellees cite no foreign law which would be violated by the sale of May 22. The allegation (denied by the appellants) that the indorse- ment in blank of a bill of lading would not effect a transfer of title of a cargo according to the law of Peru is not in point, since the appellants bought at Liverpool, and it is clear that by English law the indorse- ment in blank passes title. In any case, in view of the sale of Mav 22, the indorsement of the bill of lading is no more than a delivery order given to the master, who held the merchandise for the appellants. It results from what has been said that even if the law of Peru con- siders as a kind of theft the violation of legal attachment to which, it appears, the cargo of the " Pride of Devon " was subject at the port of embarkation, article 2280 of the Civil Code would relieve the appellants from the suit for restoration of the merchandise, since the appellees do not offer to reimburse the price paid by the appellants. Under these circumstances, the attachment cannot be maintained. Judgment reversed. 1 This judgment, and part of the judgment of the Court of Appeal, are omitted. — Ed. VOL. II. 13 r 194 FRERES V. VARTHALITI. [CHAP. VII. COtTTEAUX FRERES v. VARTHALITI. Spanish Consular Court, Constantinople. 1892. [Reported 20 Clunet, 447.] Varthaliti, a Spanish subject, had pledged various valuable securi- ties to secure advances to him from the banking-house of Couteaux Freres, of Belgian nationality. Varthaliti having been declared bank- rupt, certain creditors attacked the validity of the pledge in the Spanish Consular Court, sitting as a bankruptcy court, on the ground that it was null as to them, not having been executed in accordance with Spanish law, the law of the court. They petitioned the court to declare that the securities were deposited in the bank in the course of business, and to bring them into the fund for the general creditors. The Court. The principle actus regit locum, which the Advocate Galli invokes as the complement of the aphorism locus regit actum, is not to be admitted. We cannot appby to the present case article 1865 of the Civil Code ; x to do so would be to establish a rule as false as prejudicial. If it were established, a Spanish subject knowing his- own law and acting in bad faith, might apply on the eve of his failure at the establishment of a subject of another country, at the place where the} r both reside, for a loan or a credit for his own personal use, pledging as securit}^ valuable effects : being sure that at a certain time these valuable effects, by virtue of the article in question, would fall into the mass of his assets, for the benefit of his general creditors and to the obvious prejudice of the new creditor. Every subject of each nation could as well act in the same way, profiting in a foreign country by the Code under which he should have acted if he had been in his own country. If this doctrine were once admitted in a place like Con- stantinople, where commerce is carried on by subjects of every nation under the sun, the application of distinct laws to cases like this in question would produce such confusion that business would be paral- yzed b} r the annulling of contracts. As a result of facts of this sort, and by mutual agreement of nations which had once suffered from them, private international law came into existence, inspired by the necessity of admitting the effect of foreign laws. This law has the character of customary law, and its principles are distinguished by a number of statutes, namely : the statute per- sonal, which affects persons ; the statute real, which governs things : and the statute formal, which deals with forms. The statute formal is based on the principal locus regit actum, and in no manner on the principle actus regit locum which Advocate Galli would have applied. Article 11 of the Civil Code, invoked by Advocates G. Couteaux and E. Degand in their arguments, to the effect that " forms and solemni- 1 " A mortgage has no effect against third persons unless its execution is established by a public act." SECT. IV.] LORD CRANSTOWN V. JOHNSTON. 195 ties of contracts, wills, and other public acts are governed by the laws of the countries where they are executed," implicitly deals with the statute formal, and the only principle applicable to the present case is therefore locus regit actum. The Ottoman law of Medjele in force in this empire provides that " pledge is constituted by the simple declaration of consent of parties followed by delivery of possession of the thing pledged." Varthaliti acknowledged having delivered to Couteaux Freres the valuable effects in question in pledge, as security for debts contracted with them. The aforesaid law of Medjele furnishes a rule for transactions of this kind, which are entered into daily by banks and money-lenders established here. SECTION IV. TRUSTS. LORD CRANSTOWN v. JOHNSTON. Ckaxcery. 1796. [Reported 3 Vesey, 170.] The bill was filed upon the following case. After various dealings between the plaintiff and defendant previous to the year 1788, which produced a bill by the defendant, they agreed to an arbitration. Upon the 8th of Jul}*, 1789, an award was made, that Lord Cranstown should, upon the 1st of March, 1790, pay at Lloyd's Coffee House £2,521, 10s. 9d. At the time of the award the plaintiff was abroad, and he did not comply with it. He was entitled to the reversion upon the death of his mother of a plantation in the island of St. Chris- topher, the average product of which was £5,000 a year; and dur- ing the life of his mother he was entitled to an annuity of £300, charged upon that plantation. The defendant, immediately after the expiration of the time limited by the award, procured an agent to in- stitute proceedings in the island against the plaintiff in his absence ; and thereby obtained payment of the said annuity since the 25th of December, 1789. The plaintiff returned to England in 1791, and frequently offered to pay the defendant, and requested him to come to an account : but he refused to refund ; and after the expiration of the time commenced an action in the Court of King's Bench and Common Pleas in the island, obtained judgment, and caused an execution to be taken oiit ; and thereby the Deputy Provost Marshal of the island seized and put up to public sale the said rent-charge and reversion; and the defendant became the purchaser of both for £2,000 currency : ffc 196 LORD CRANSTOWN V. JOHNSTOX. [CHAP. VII. and a bill of sale and conveyance was executed to hiin by the said Deputy Provost Marshal, by means of which he was become entitled to his own use; and £2,000 currency being of the value of £1,200 sterling, he claims to have a personal demand for the remainder of the sum awarded. 1 Sir Richard Pepper Arden, Master of the Rolls. This relief is sought upon the terms of paying all such sums of money as were due to the defendant at the time of the judgment, and the costs and expenses he was put to in procuring and carrying into effect that judgment ; and I suppose, though it is not expressly stated, upon pay- ment of all such incumbrances affecting the same estates as the defendant may have become entitled to. From the moment the case was opened, and after reading the evidence, there can be no question except as to the terms of the relief; for I confess, I never saw a case in which the relief sought was more clear ; and I must forget the name of the court in which I sit if I refuse to grant it. . . . Such a picture of a sale under a judgment so insisted upon is such as I should not have thought could have been exhibited in a court of justice with a serious intention, supposing that any law of any country should be perverted to such a purpose. It is material to see what was the law to which the defendant applied for enforcing payment. He could not with effect in this coun- try ; but he found out this interest in that island : where there was an act of assembly authorizing any creditor to proceed against an absent debtor b}- writ of summons, and in case the defendant shall secrete and conceal himself, so that the Provost Marshal or other person summoning cannot find him, then one summons and a copy of the declaration left at the last usual place of abode, or upon the freehold of the defendant, and another nailed up at the court-house door, shall be good and effectual. He thought fit to proceed on this law ; and I must now suppose he had a right so to do, though the plaintiff, I think, was very ill advised for not trying whether any relief could be given in the island: a summons left upon the freehold, as it is called, of a person who had no freehold in possession ; who had no tenant, upon whom this constructive notice could be served ; and the creditor here knowing this avails himself of this law, which I do not mean to quarrel with : but neither that law nor any law in His Majesty's dominions could be, I hope, carried to the extent of author- izing a sale without either actual or constructive notice. It is perfectly clear, the plaintiff had no conception that his estate was to be sold. He knew the defendant had a judgment, and thought it would be a security to him ; and in the letter of the 4th of October hopes he will be content with that. . . . Upon the whole it comes to this : that by a proceeding in the island an absentee's estate may be brought to sale, and for whatever in- 1 The statement of evidence, arguments of counsel, and part of the opinion are omitted. — Ed. SECT. IV.] LORD CKANSTOWN V. JOHNSTON. 197 terest he has, without any particular, upon which the}- are to bid : the question is, whether any court will permit the transaction to avail to that extent. It is said, this court has no jurisdiction, be- cause it is a proceeding in the AVest Indies. It has been argued ver}* sensibly, that it is strange for this court to say, it is void b}- the laws of the island or for want of notice. I admit, I am bound to sav, that according to those laws a creditor may do this. To that law he has had recourse, and wishes to avail himself of it ; the question is, whether an English court will permit such a use to be made of the law of that island or any other country. It is sold, not to satisfy the debt, but in order to get the estate, which the law of that country never could intend, for a price much inadequate to the real value, and to pay himself more than the debt, for which the suit was commenced, and for which only the scale could be holden. It was not much litigated that the courts of equity here have an equal right to interfere with regard to judgments or mortgages upon lands in a foreign eountiy as upon lands here. Bills are often filed upon mortgages in the West Indies. The onby distinction is, that this court cannot act upon the land directby, but acts upon the con- science of the person living here. Archer /•. Preston, Lord Arglasse v. Muschamp, Lord Kildare v. Eustace, 1 Eq. Abr. 133 ; 1 Vera. 75, 135, 419. Those cases clearly show, that with regard to any con- tract made or equity between persons in this country respecting lands in a foreign country, particularly in the British dominions, this court will hold the same jurisdiction as if they were situated in England. Lord Hardwicke lays down the same doctrine, 3 Atk. 589. Therefore without affecting the jurisdiction of the courts there, or questioning the regularity of the proceedings as in a court of law, or saying that this sale would have been set aside either in law or equity there, I have no difficulty in saying, which is all I have to say, that this creditor has availed himself of the advantage he got by the nature of those laws to proceed behind the back of the debtor upon a constructive notice, which could not operate to the only point to which a con- structive notice ought, that there might be actual notice without wilful default : that he has gained an advantage, which neither the law of this nor of any other country would permit. I will lav down the rule as broad as this: this court will not permit him to avail himself of the law of any other country to do what would be gross injustice. It is said, what if the sale had been to a third person? I am glad I have not to determine that. A third person might have a great deal more to say than this defendant can. He might say the law of the island authorizes a lottery, and having bid he has a right to retain it. But this defendant has no such right except for the purpose of pav- ing himself the debt. . . . Therefore on payment of the money awarded, and such sums as the defendant has paid in the island, with interest at 5 per cent, lie 198 EX PARTE POLLARD. IN RE COURTNEY. [CHAP. VII. must reconvey, subject to other incumbrances. Take an account of what is due for principal and interest, and also of what is due upon the payments of the annuity with interest, and reserve the costs. Ex parte POLLARD. In re COURTNEY. Chancery. 1840. [Reported Montague §• Chitty's Reports, 239.] Lord Cottenham, L. C. 1 The short result of the facts of this case, as stated in the special case b} T which I am bound, is, that the bank- rupts were absolutely entitled, as part of their partnership property, to some land in Scotland, the legal title being in George Courtney, one of the bankrupts ; that the firm, being indebted to the petitioner, George Pollard, in order to induce him to give them further credit, deposited with him the disposition and instrument of seisin, being the title deeds of such lands, and signed and gave to him a memorandum in writing, dated the 13th of March, 1832, declaring that they thereby gave to Pollard a lien upon the land for the general balance of all or any monies that then were or might thereafter become due to him from them to the extent of £2,000, and they agreed that he should stand in the nature of an equitable mortgagee thereof; and. on demand, they further agreed to make, do, and perfect all such acts for the better securing to him of any such monies as aforesaid ; that Pollard, relying upon the security of the hereditaments so charged to him as aforesaid, continued to give credit to the bankrupts to the time of their bank- ruptcy, which took place on the 20th December, 1832, at which time he was a creditor for the sum of £1,927 4s. 6d. The only other facts stated in the special case, material to the present question, is, that by the law of Scotland no lien or equitable mortgage on the estate in question was created by the deposit of the title deeds, or by the writ- ten memorandum. The question is, whether Pollard is, under the cir- cumstances, entitled to have his debt paid out of that part of the estate of the bankrupts which consists of their property in Scotland, in pref- erence to their general creditors; or, in other words, the assignees being liable to all the equities to which the bankrupt was subject, whether such a deposit and agreement, made and entered into in this country, gave to the creditor such a title as against his debtor to have the agreement performed and the debt paid out of the property in Scotland, the subject of such deposit and agreement. The special case also finds that the deposit and agreement does not b}' the law of Scot- land create any lien or equitable mortgage upon the estate. By this statement of the law of Scotland, which, sitting here, I must consider 1 The opinion only is given. — Ed. SECT. IV.] EX PARTE POLLARD. IN EE COURTNEY. 199 as a fact, I am bound, but so far only as the statement goes, and that does not find anything contrary to the well-known rule, that obligations to convey, perfected secundum legem domicilii, are binding in Scot- land, but that by the law of Scotland no lien or equitable mortgage was created by the deposit and agreement ; by which must be under- stood that the law of Scotland does not permit such deposit and agree- ment to operate in rem, and not that they may not give a title to relief in personam. It is true that in this country contracts for sale, or (whether expressed or implied) for charging lands, are in certain cases made by the courts of equity to operate in rem ; but in contracts respecting lands in countries not within the jurisdiction of these courts they can only be enforced by proceedings in personam, which courts of equity here are constantly in the habit of doing : not thereby in any respect interfering with the lex loci rei sitce. If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act ; but when there is no such impediment the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such con- tracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal- with such equities. The observations of Lord Hardwicke in Penn v. Baltimore, 1 Ves. 454, are founded upon this distinction. In Lord Cranstown v. Johnston, 3 Ves. 182, Lord Alvanley, upon principles of equity familiar in this country, set aside a sale in the Island of St. Christopher, by the laws of which country the sale was perfectly good, no such principles of equity being recognized by the courts there, saying, " With regard to any contract made or equity between persons in this country respect- ing- lands in a foreign country, particularly in the British dominions, this court will hold the same jurisdiction as if they were situated in England." In Scott v. Nesbitt, 14 Ves. 442, Lord Eldon, in the face of the master's report finding that there was no law or usage in Jamaica for a lien by a consignee in respect of supplies furnished to the estate, directed consignees to be allowed such expenditure in their account with encumbrancers. Bills for specific performance of contracts for I he sale of lands, or respecting mortgages of estates, in the colonies and elsewhere out of the jurisdiction of this court, are of familiar occur- rence. Why then, consistently with these principles and these authori- ties, should the fact, that by the law of Scotland no lien or equitable mortgage was created by the deposit and memorandum in this case, prevent 5 the courts of this country from giving such effect to the trans- actions between the parties as it would have given if the land had been in England? If the contract had been to sell the lands a specific performance would have been decreed; and why is all relief to be 200 ACKER V. PRIEST. [CHAP. VII. refused because the contract is to sell, subject to a condition for redemption? The substance of the agreement is to charge the debt upon the estates, and to do and perfect all such acts as ma}- be neces- sary for the purpose; and if the court would decree specific perform- ance of this contract, and the completion of the securit} - according to the forms of law in Scotland, it will give effect to this equity by paying out of the proceeds of the estate (which being part of the bankrupt's estate must be sold) what is found to be the amount of the debt so agreed to be charged upon it, which is what the creditor asks. The special case finds, that the deeds were deposited and the agreement signed by the bankrupts in order to induce the creditor to give them further credit, and that he, relying upon the security of the heredita- ments so charged to him, continued to give credit to the bankrupts to the time of their bankruptcy. The transaction is in no respect im- peached, and there is no competition with any person having obtained a title under the law of Scotland. The only parties resisting the credit- or's claim are the assignees, who are bound by all the equities which affected the bankrupts. To deny to the creditor the benefit of this security would be an injustice which, if unavoidable, would be much to be regretted. In giving effect to it I act upon the well-known rules of equity in this country, and do not violate or interfere with any law or rule of property in Scotland, as I 011I3- oi'der that to be done which the parties may by that law lawfully perform. I reverse the judgment of the Court of Review, giving to the creditor payment of his debt out of the proceeds of the estate. Judgment of the Court of Review reversed. ACKER v. PRIEST. Supreme Court of Iowa. 1894. [Reported 92 Iowa, 610.] Deemer, J. 1 The plaintiffs in the equity suit are the heirs at law of Elizabeth Priest, deceased, and the defendant, Stephen C. Priest, is their father. Mrs. Priest was a daughter of one Joseph Abrams. Joseph Abrams had one son and three daughters, besides Mrs. Priest. In the month of Jul}', 1884, Abrams, who was then living in the State of Kan- sas, concluded to make a partial distribution and advancement of his property to his children. He was then the owner of two farms in Kan- sas, one of which was known as his " Home Farm," and the other was occupied b} T defendant Priest and his family. Thomas W. King, another son-in-law, owned and occupied another and a third farm in the same county as the other two. In order to carry out his purpose, and make an equal distribution of propert}- to his daughters, Abrams 1 Part of the opinion only is given. — Ed. SECT. IV.] ACKER V. PRIEST. 201 made arrangements with King to exchange the home farm, valued at $8,000, for the King place, at the agreed price of $4,000. Prior thereto, however, Abrams had had a conversation with defendant Priest, in which he told him he intended to give him a farm. After making? arrangements with King, Abrams informed defendant thai he had an opportunity to trade the home farm for King's land, and directed de- fendant to go and look at the farm, and if it suited him he (Abrams) would make the exchange. Defendant, after examining the place, was pleased with it, and so informed Abrams, and Abrams made the con- templated exchange. Abrams deeded the home farm to King, and King, by direction of Abrams, and with the knowledge, direction, and consent of the deceased, Mrs. Priest, made a deed to his place to the defendant Priest. This last deed was a warranty deed, in the usual form, and for the expressed consideration of $4,000. Shortly after the making of these deeds, the defendant moved onto the King farm, and used and occupied it for a year or more, when he sold it, and with the proceeds purchased a farm in Cass County, Iowa, from one Isabella Goodale. The deed to the Cass County land was taken in the name of the defendant with the knowledge and consent of his wife. Defendant and his wife immediately took possession of the Cass County land, and occupied and used the same until the death of his wife, in April, 1888. After the death of the wife, and in May, 1891, the defendant sold the land in Cass County, and at the time of the commencement of this suit was in possession of a large part of the proceeds of the sale. Plaintiffs claim that the defendant at all times had the title to the Kansas land and to the land in Cass County in trust for his wife, Elizabeth V. Priest, and that they, as her heirs at law, are entitled to have a trust impressed upon the funds now in the hands of the defendant, arising out of the sale of the Cass County land. Defendant Isaac Dickerson was made a party to the suit because of his having possession of some of the funds arising from the sale of the land in this State. . . . Plaintiffs do not — nor, indeed, could they, under the statutes of either Kansas or of this State — claim an express trust in the land, or the proceeds thereof. Their claim is that from the transactions between the parties, as proved, there arose an implied, a resulting, or a con- structive trust, which the law will recognize and enforce. We turn then to the evidence, and find that while it was the intention of Abrams to make a partial distribution of his estate among his heirs, yet it did not appear to him to be important to whom he made the deeds, — whether to his daughters, in their own names, or to their husbands. The deed tojlie home farm was made to King, the husband of one of his daugh- ters, and the deed to the King farm was made direct to defendant Priest. Abrams had previously spoken to defendant about giving him a farm, and while the deed was, no doubl, made so as to place all his children on an equality, it is quite evident to us that it was wholly immaterial to him to whom the deed should be made. Before hav- ing the deed made to defendant, Abrams spoke to his daughter, Mrs. 202 ACKER V. PRIEST. [CHAP. VII. Priest, about how the deed should be made, and " she said to make it to her husband ; it was all the same." Again, Abrams testifies, " My daughter gave no reason [for making the deed to her husoand], except that it would be all right, recognizing him as her husband." Even if Abrams intended the deed to be for the benefit of Mrs. Priest and her children, as he says, he did not so state to defendant, and defendant had no knowledge but that he was to take the beneficial as well as the legal estate. Abrams directed King to make the deed to defendant, and King had no conversation whatever with defendant. Applying these facts to the statutes of Kansas, before quoted, with reference to the creation of trusts, 1 and it is clear that defendant took an absolute title to the land deeded him by King, unincumbered with any trust. It is contended, however, that the laws of Kansas have no application to this case, that the statutes above quoted relate simply to the remed} - , and that the lex fori governs. Without deciding this ques- tion, so far as it relates to the statute of frauds, for it is not necessary to a determination of the case, and passing it with the single remark that where the statute relates simply to the remedy, and does not make the parol contract void, as is the case with the statute in question, there is much force in appellants' position, we are clearly of the opinion, however, that the other statutes with reference to the creation of trust estates are binding, for they go to the validity and operation of the con- tract, and of the alleged trust in the land. It is familiar doctrine that the law of the place where the contract is made is to govern as to its nature, validity, obligation, and interpretation, and the law of the forum as to the remedy. Bank v. Donnallv, 8 Pet. 316 ; Scudder v. Bank, 91 TJ. S. 406 ; Burchard v. Dunbar, 82 111. 450. It is also every- where acknowledged that the title and disposition of real property are exclusive^ subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one person to another. Kerr v. Moon, 9 Wheat. 565 ; McCormick v. Sul- livant, 10 Wheat. 196. And a title or right in or to real estate can be acquired, enforced, or lost only according to the law of the place where such property is situated. Bentley v. Whittemore, 18 N. J. Eq. 373 ; Hosford v. Nichols, 1 Paige, 220 ; Williams v. Mails, 6 Watts, 278 ; Wills v. Cowper, 2 Ohio, 124. If we are correct in our premises, it necessarily follows, as a conclu- sion, that under the laws of Kansas there was no trust created bj' law in the Kansas land, even if it be said that Mrs. Priest furnished the consideration paid for the land, because there was no agreement on the part of the defendant that he should hold the title in trust for his wife. 2 1 Gen. St. Kan. 1868, c. 114, § 6. When a conveyance for a valuable consideration is made to one person, and the consideration thereof paid by another, no use or trust shall result in favor of the latter, but the title shall vest in the former, subject to the provisions of the next two sections. — Ed. 2 The court further held that apart from the statutes of Kansas there was no trust. Ace. Depas v. Mayo, 11 Mo. 314 ; Penfield v. Tower, 1 N. I). 216. — En. SECT. IV.] PURDOM V. PAVEY. 20.' PURDOM v. PAVEY. Supreme Court of Canada. 1896. [Reported 20 Canada, 412.] This action was brought by Pavey & Co., creditors of one Ebenezer Davidson. The said Davidson had made a general assignment for the benefit of his creditors ; the assets were insufficient to pay the debts, and a balance was due these plaintiffs. Afterwards Davidson became entitled to land in Oregon ; he conveyed this land to his father, who gave to Purdom a mortgage on the land equal to the amount of the purchase-money named in the deed. The plaintiffs alleged that Purdom took said mortgage as a trustee for Davidson, in pursuance of a fraudu- lent scheme to defraud plaintiffs and other creditors of Davidson ; and prayed that Purdom should be declared a trustee for Davidson, and that the money due on the mortgage note should be ordered paid into court for the benefit of the plaintiffs. The defendants demurred. From a judgment of the Court of Appeal of the Province of Ontario, over- ruling the demurrer, the defendants appealed to this court. 1 Strong, C. J. So far as the lands are concerned, the validity or invalidity of this transaction must depend on the lex rei sitce, — the law of the State of Oregon, — 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 that even an express trust must necessarily enure to the benefit of or be available for the satisfaction of creditors. . . . Then whether the allegation of a "trust" of the purchase-money se- cured by the mortgage which the plaintiffs allege is to be considered as an averment of a trust arising by operation of law consequent upon the illegality of the transaction or as an allegation of a conventional express trust, in either case the question would depend on the lex rei sit« j , and from this alone it follows that the forum of the situs is the proper forum. In this last aspect of the case, He Hawthorne, Graham v. Masse}', 23 Ch. Div. 743, and Norris v. Chambres, 29 Beav. 246, appear to me to be authorities. Appeal allowed with costs. i This short statement is substituted for that of the Kepurter. Part of the opinion only is given. — Ed. 204 SIEBBERAS V. DE GERONINO. [CHAP. VII. S1EBBERAS v. DE GERONINO. Court of Cassation, Palermo. 1894. [Reported Journal du Palais, 1895, IV. 28.] The Court. The Court of Appeal regards as nullified the trust for the Italian family Siebberas of property in Great Britain, by virtue of the repealing law of 1818, of Article 889 of the Italian Civil Code, and of Article 24 of the Temporary Law of November 30, 1865. It permits the application of the Italian law to this property. Its judg- ment is clearly erroneous. Every sovereignty which exists in the great family of nations is essentially autonomous and independent, and the right of each is limited by the equal right of the others. This sover- eignty is shown, first, in dealings between citizens who are subject to the same sovereign. It is shown in a second aspect in dealings with citizens who are subject to another sovereign ; under this second as- pect science considers every sovereignty as an international person capable of rights and duties. There is no doubt but that by reason of its autonoim r every sovereignty considered under the first aspect gov- erns for itself its organization, its administration, and the provisions intended to protect the interests of the people and of the country ; laws being only the expression of the conscience of the people and of the needs of the nation, and requiring to be in conformity with the customs, the traditions, the degree of civilization, and the racial, physi- cal, and moral constitution of the people. On the other hand, laws should be the necessary and progressive development of the civilization and needs of the people, in order to be found in accordance with them and to grow with their development. It follows that laws, because of the reasons which have led to their adoption, can have effect only in the territory ruled by the sovereign which has promulgated them. These principles, sound as they are for laws in general, are particu- larly so for those which concern the internal public law and the social organization, among which we must place those which authorize or for- bid the creation of trusts. They are essentially territorial in character, and have to do only with citizens who are within the territory of the sovereign and with property situated within the same territory. The Court of Appeal, therefore, was wrong in holding that trusts established over property in a foreign country are null for the sole reason that the defendant is an Italian citizen. The Italian law has dissolved trusts, entails, and other settlements in perpetuity established according to previous law ; but only those which existed within the kingdom, and not those which, established in another territory, are subject to another autonomous and independent sovereign. It is even more false to sup- pose, as the court appears to have done, and as the defendants in error continually do, that the trusts in this case should be considered sub- jectively null b} T reason of the provisions of our law, and as objectively SECT. IV.] SIEBBERAS V. DE GER0N1N0. 205 valid because at Malta, where the property is situated, thej T are author- ized. A right cannot be at once valid and null ; and if an Italian court attributed to Italians the absolute title in property, and yet held the property subject to a trust in the country where it is situated, what could be the effect of such a decision? It could not be executed in the countrv of situs, and would consequently be a mere academic opinion, deprived of juridical and practical value. These principles are not opposed to Article 8 of the preliminary provisions of the Italian Civil Code ; the judgment appealed from vio- lates the letter and spirit of it. This article concerns itself with the Italian sovereignty considered as an international person ; it is face to face with the ancient doctrine, according to which foreigners did not participate in the benefit of the law and were considered enemies : adrersus hostem mterna auctoritas esto. This system had been lim- ited by the principles of reciprocity and common utility ; but these limitations no longer correspond to the progress of jurisprudence, and the principle was finally adopted that a private right belongs to the individual as an individual. The Italian sovereignty, as a result, not only admits foreigners to the enjoyment of such civil rights as belong to citizens, but even goes so far as to permit them to invoke the law of their own country to settle successions ; the statute personal had previouslv regulated only the succession to movables, and the succes- sion to immovables was regulated by the statute real. The Italian law has come to look upon succession as an emanation of the family, as an universitas juris, continuing the person of the deceased. This pro- vision shows that the Italian legislature has intended to follow the progress of private international law ; and has considered that, accord- ing to the jus gentium, it is not contrary to the exercise of an auton- omous and independent sovereignty to admit within a territory the application of a foreign law, if this application is based upon an inter- national duty, a reason of comity, and the mutual utility of nations. It is to be noted that this bold but eminently liberal principle is appli- cable only to foreigners. Italian citizens are subject to it neither as to their property situated in Italy, which is governed by the provisions of the Civil Code in relation to successions, nor as to their property situated abroad, because the Italian sovereignty cannot impose its au- thority upon another autonomous and independent sovereignty which is bound to enforce its own laws. So much is clear, however principle and authority may differ about the sense of Article 8. We must also remember that a literal interpretation is illogical ; a provision should be interpreted according to its spirit, and Article 8 never meant to pro- vide for imposing its application upon foreign sovereignties. It follows that trusts established in a foreign country are valid, even if they are for the benefit of Italian citizens, if they are authorized by the law of their situs. The Italian law did not mean to extend the scope of a mere legislative provision so as to cover any principle of international law ; it has conformed to the progress of international law 206 fowler's appeal. [chap. vii. on the subject of the jurisdiction of foreign law, and has admitted this jurisdiction in all cases where it seemed necessary because of the na- ture of the rights in question ; it has shown itself generous and liberal, in order to give a laudable example, and to invite foreign sovereignties to adopt the same rule. Finally, in spite of the development of international law, it is not the duty of a sovereignty to abdicate its inherent right to the preservation of its constitution, to its independence, to the maintenance of public order, and to all that ad statum rei publicaz spectat ; so that in every case the application of a foreign law should yield, if it would have the result of derogating from the public laws of the kingdom, and from those which concern public order and public morals. Now the aboli- tion of trusts in Itaby is due either to political reasons or to the eco- nomic principle that the conveyance of property should be free in the interest of the development of the general wealth of the nation ; so that the abolition of trusts is due to motives of public order. The English law, which authorizes trusts, would therefore have no effect upon im- movables situated in Italian territory. But reciprocally the Italian law cannot have the effect of invalidating trusts created in England, even though the trust estate belongs to Italian citizens, and though succes- sion is an indivisible unit. Judgment of the Court of Appeal quashed. FOWLER'S APPEAL. Supreme Court of Pennsylvania. 1889. [Reported 125 Pennsylvania, 388.] Paxson, C. J. 1 By the terms of this deed of trust the trustee is re- quired to " pay over the income and dividends on said bonds to Marie Washburne Fowler (appellant). . . . And should the said Marie Wash- burne Fowler die, the said trust herein declared shall inure to the ben- efit of her heirs ; but if she have no children the same shall revert to my estate." There was a further direction to add fifty dollars per year oiit of the income to the principal. It also appeared that since the execution of this paper the said Marie has given birth to a child, who is now living, and that the settler or donor, Elihu B. Washburne, died without having in any manner exercised the power of revocation re- served in the deed of trust. The question is whether the said Marie W. Fowler is entitled to the corpus of the trust estate, consisting only of corporation bonds, freed and discharged from the trust. The court below decided that she was not, and in this we see no error. . . . Nor do we think the direction to accumulate is invalid under the act 1 Part of the opinion only is given. — Ed. SECT. IV.] FIRST NAT'L BANK V. NATL BROADWAY BANK. 207 of 1853. 1 The act does not apply. The settler was a citizen of Illinois and died there ; the deed of trust was made there ; the securities are those of foreign corporations, and Mrs. Fowler is a citizen of Colorado. I do not understand it to be denied that the trust is valid by the law of the State where it was made and of the State where it is enjoyed ; and the mere fact that the trustee happens to be a Pennsylvania corpo- ration cannot invalidate the trust. The act of 1853 was only intended to apply to our own citizens, and a trust intended to take effect beyond our own territory cannot be affected by it. Authorities upon this point are not abundant ; at least they have been sparingly cited. We may refer, however, to Attorney-General v. Stewart, 2 Mer. 161 ; Curtis v. Hutton, 14 Ves. 537 ; Hill on Trustees, 457 ; Draper v. College, 57 How. Pr. 269 ; Chamberlain v. Chamberlain, 43 N. Y. 433 ; Cruin v. Bliss, 47 Conn. 592. The case is clear upon principle. The decree is affirmed, and the appeal dismissed at the costs of the appellants. FIRST NATIONAL BANK v. NATIONAL BROADWAY BANK. Court of Appeals, New York. 1S98. [Reported 15G Xew York, 459.] Appeal from a judgment of the Appellate Division of the Supreme €ourt in the first judicial department, entered November 26, 1897, affirming a judgment in favor of the defendants, entered upon a deci- sion of the court on trial at Special Term dismissing the complaint upon the merits. The plaintiff commenced this action to compel the Broadway Bank to transfer to its name certain shares of capital stock, issued to and standing in the name of "Philo P. Hotchkiss, trustee." The defend- ant bank denied the plaintiff's ownership, and set up the claim of title made thereto by Seth M. Tuttle, as alleged trustee of the shares, in succession to Hotchkiss. Tuttle was subsequently brought into the action and made a party defendant, upon his application, in order to prosecute his claim of ownership. The general history of the trust is, that in 1857 William II. I inlay, of Hartford, Connecticut, deeded certain Michigan lands to Chester Adams, of the same place, as trustee. By the terms of the trust he was 1 Act of April 18, 185.3, Pa. V. L. 503. " No person or persona shall, after the pass- ing of this act, by any deed, will, or otherwise, settle "■• dispose of anj real or personal property, so and in such manner that the rents, issues, interest, <>r profits thereof shall he wholly or partially accumulated f'>r any longer term than the life or lives "f any .such grantor <>r grantors, settler or settlers, f twenty-one years from the death of any such grantor, settler, or testator."— Ed. 208 FIRST NAT'L BANK V. NAT'L BROADWAY BANK. [CHAP. VII. to sell the lands and to invest the net proceeds in good bank stocks :n his own name as trustee, with power to sell such stocks and to reinvest in other bank stocks. He was to pay the net income equally to Imlay's three unmarried daughters, for their sole and separate use, etc. The issue of any daughter was to take in fee the share held in trust for the mother, upon her death, and upon the death of one or more of the daugh- ters, without issue surviving, the trust share or shares were to vest in the survivors or survivor. Adams, the trustee, died subsequently, leav- ino- a will, wherein he appointed one Bartholomew as his successor in the trust, pursuant to a power to that effect contained in the trust deed. Subsequently, Bartholomew resigned as trustee, and Hotchkiss was, by an order of the Probate Court of Hartford, Connecticut, appointed trus- tee in succession. At the time of his appointment, Alice, one of Imlay's daughters, had died, without issue, and her one third share in the trust had vested in her two surviving sisters, Isabel and Georgiana. Isabel had also died, but left issue surviving, to whom her portion of the trust estate was paid. Georgiana married Hotchkiss and has two dauohters. When Hotchkiss was substituted as trustee, under the deed of trust, the defendant Broadway Bank transferred the stock in question into his name, upon receiving the order mentioned, which re- ferred to the trust deed. Some time after his appointment, Hotchkiss, who held himself out as manager of " Hotchkiss & Co.," presented a note for $12,000 of that firm ; which the plaintiff discounted upon the pledge of collateral securities, which included the stock in question and which were taken up, by means of the proceeds of the discounted note, from the Home Insurance Company, by which company the collaterals had been held to secure a former note of Hotchkiss & Co. The plain- tiff received at the time a writing signed by Georgiana Hotchkiss, which authorized her husband to borrow on the " stocks standing in his name as trustee for my benefit and owned by me." Subsequently, upon de- fault in payment of the note, the plaintiff, pursuant to the terms of the stock note discounted by it, sold the stocks at public auction and pur- chased them thereat. Upon requesting of the defendant bank a transfer of the stock and the issuance of a new certificate, the request was re- fused, and thereupon this action was instituted. Hotchkiss, having been convicted of grand larceny and sent to prison, was removed as trustee upon the application of Alice Richards, a daughter of Georgiana Hotchkiss, the beneficiary of the deed of trust, and Tuttle was appointed trustee in his stead by an order of the Supreme Court in this State. The concern of Hotchkiss & Co., whose note was discounted by the plaintiff, appears to have consisted only of Georgiana I. Hotchkiss, the business being managed by Philo P. Hotchkiss. 1 Gray, J. Upon these facts, which are undisputed, the courts below have held that Tuttle was entitled to the possession and transfer of the stock and to the accrued dividends thereon. The conclusion as to the title to the property was reached upon the theory that, as the plaintiff 1 Arguments of counsel and part of the opinion are omitted. — Ed. SECT. IV.] FIBST NAT'L BANK V. NAT'l BROADWAY BANK. 209 received the stock with constructive notice that it was the subject of a trust, no title was acquired thereto which it could enforce ; for the pledge was contrary to the terms of the trust. I think that, so far, we should agree in the decision of the learned justices below. . . . °But I do not think we should affirm the judgment below, in so far as it denies the plaintiff's claim upon the life interest of Georgiana llotch- kiss in the dividends accumulated and to be declared upon the stock. The learned justices below have denied the claim upon the ground that her interest, as beneficiary of the trust, was inalienable under the Re- vised Statutes, 1 R. S. 729, § 63. That would be perfectly true, if the trust could be regarded as governed by the laws of this State ; but I am unable to so regard it. The trust was created in Connecticut, by a res- ident of that State, in favor of his children there. Adams, the trustee named in the deed of trust, was domiciled in Connecticut, and by his will, probated there, he appointed his successor in the trust as directed by the deed. Hotchkiss was appointed trustee, in further succession,, by an order of a court of that State. The transaction of loan by the plaintiff, itself, was in New Jersey. Under these circumstances, I do not see how the questions relating to the interests of the beneficiary in the trust are to be dealt with according to the provisions of our statutes. What the law of the State of Connecticut may be concerning them, as affected by any legislative enactments, we are not informed by the proofs in the case. Section 63 of our Revised Statutes, 1 R. S. 730, effected a change in the common-law rule, which permitted the alienation of their interests by cestuis que trustent, and, in the. absence of proof upon the subject, we may not indulge in the presumption that the prohibitory provisions of our statutes have been enacted in Connecticut. Leonard v. Navigation Co., 84 N. Y. 48 ; Vanderpoel v. Gorman, 140 N. Y. 563. Tt is to be presumed that the common-law rules, in equity, still obtain there. Under the common law, a wife had complete capacity to dispose of her separate estate, and, if she was the beneficiary of a trust, she was capable of charging her equitable interest, to the extent that it was not inconsistent with the terms of the trust instrument. L'Amoureux v. Van Rensselaer, 1 Barb. Ch. 34-37 ; Yale v. Dederer, 18 N. Y. 265 ; Dyett v. Trust Co., 140 N. Y. 54-65. By this deed of trust, the settlor's only apparent intention, as to his daughters' enjoyment and disposition of their interests, is that they should have the sole and separate use. free from their husbands' control or interference. When the plaintifl made the loan of money upon the note of Hotchkiss & Co., it was upon a written authorization of Georgiana Hotchkiss to her husband that he might "borrow" on certain named stocks "standing in his name as trustee for my benefit and owned by me." She was the person dealing under the firm name of Hotchkiss & Co., and had filed her certificate to that effect, as required by the laws of the State. Thus, we have a transaction entered into by the plaintiff, presumably, in reliance upon the representations of Georgiana, the beneficiary, and for the benefit of a business concern, which was legally hers. I think she is estopped by VOL. II. — 11 210 DE NICOLS V. CURLIEE. [CHAP. VII. her acts from setting up an}- claim to the income upon the stock, re- ceived and which may be hereafter, during her life, received by wa}' of dividends, by the trustee. If this were not so, then the court would be aiding her in the perpetration of a fraud upon the plaintiff. That the writing signed by her, and upon which the plaintiff's officers acted in dealing with Hotchkiss, was a disposition, or pledge, by his wife and beneficiary, of her separate interest in the trust, I entertain no doubt, and to hold otherwise would be highly inequitable. I am not without some hesitation upon this phase of the case ; because I am mindful of the policy of the State, as declared in the enactment of a statutory pro- vision, so beneficent and protective in its character as section 63 ; but I cannot regard this case as one which comes within the sphere of any State policy. I look upon the question as simply one of a trust created in, and governed by the laws of, a foreign State, as presumed, if not proved, and nothing appears to prevent our giving effect to the act of .Georgiana Hotchkiss, the beneficiary, in disposing as she did of her in- terest. The conclusion I reach, therefore, is that this judgment should be modified, so that it shall adjudge that the dividends upon the stock in question, accumulated and to be declared, shall be paid to the plain- tiff, during the lifetime of Georgiana I. Hotchkiss, and, as so modified, the judgment should be affirmed, without costs of this appeal to any party, save to the defendant Broadway Bank, to be paid out of the fund. O'Brien, Bartlett, and Haight, JJ., concur; Parker, C. J., Mar- tin, and Vann, JJ., dissent. Judgment modified. 1 SECTION V. MARITAL PROPERTY. DE NICOLS v. CURLIER. House of Lords. 1899. [Reported [1900] Appeal Cases, 21.] Earl of Halsbury, L. C. My Lords, it is not necessary to state with great minuteness how the question in the present appeal arises. It is enough to say that two French subjects were married according to the laws of France on May 30, 1854. No marriage contract or instru- ment in writing was executed by either of the parties. The parties lived together, and in the year 1863 they came to England, and in the i Ace. Riddle v. Hudgins, 58 Fed. 490. —Ed. SECT. V.] DE NICOLS V. CURLIER 211 year 1865 the husband obtained the status of a naturalized British ""xhfwhole dispute turns oh the question whether the changed domicil and naturalization of the husband affected the wife's rights so as to give the husband the power to dispose of all the movable property by will instead of being restricted to the power of disposing o only one- half of it, as be undoubtedly would have been so restricted by the French law if the Freneh law is decisive of the question. If this is the law by which the matter is to be governed, it cannot be denied that the appellant here must succeed, and it is a little difficult to understand upon what principle contracts and obligations already existing inter se should be affected by an act of one of the contracting parties over which the other party to the contract has no control what- ever And indeed, it is not denied that if, instead of the law creating these obligations upon the mere performance of the marriage, the par- ties had themselves by written instrument recited in terms the very con- tract the law makes for them, in that case the change of domical could not have affected such written contract. I am wholly unable to under- stand whv the mere putting into writing the very same contract which the law created between them without any writing at all should bar the husband from altering the contract relations between himself and his wife- when if the law creates that contract relation, then the husband is not barred from getting rid of the obligation which upon Ins marriage the law affixed to the transaction. A written contract is after all only the evidence of what the parties have agreed to, and it would seem to be of no superior force as evi- dencing the agreement of the parties than a known consequence of entering into the married status. I not only do not understand but 1 should "decline to assent to any such view, unless I am compelled by authoritative decision or statute to adopt a view which to my mind is so entirely unreasonable. And it does not appear to me that any court before whom this question has come would disagree with me as to its being unreasonable. The Master of the Rolls himself says : - It is not altogether satisfac- tory to hold that a change of domicil cannot affect an express contract embodying the law of the matrimonial domicil, but that a change oi domicil does affect the application of that law if not embodied in an express contract." # , My Lords, I should think that, in order to be binding on your Lord- Bbips, a previous decision must be in principle, and. as applicable to the same circumstances, identical; and it appears tome that the case by which the Master of the Rolls thought himself bound ( Lashlcy v. Hog, 4Paton, 581) is quite distinguishable both ... principle and in circumstances. ... ., ,< „ u To omit other questions, the cardinal distinction between the French and the Scottish law is not, I think, without an important bearing upon i The Lord Chancellor here Btated the French law.— Ki>- 212 DE NICOLS V. CURLIER. [CHAP. VII. the veiy question in debate, and I think it may be stated shortly thus : If the wife by the marriage in Scotland acquired no proprietary rights whatever, but only what is called a hope of a certain distribution upon the husband's death, it is intelligible that that right of distribution, or by whatever name it is called, should be dependent upon the husband's domicil, as following the ordinary rule that the law of a person's domi- cil regulates the succession of his movable property. But if by the mar- riage the wife acquires as part of that contract relation a real proprietary right, it would be quite unintelligible that the husband's act should dis- pose of what was not his; and herein, I think, is to be found the key to Lord Eldon's judgment. He says (4 Paton, 617 ) : " The true point seems to be this, whether there is anything irrational in saying that as the hus- band, during the whole of his life, has the absolute disposition over the property, that as to him, whom the policy of the law has given the di- rection of the family as to the place of its residence, that he who has therefore this species of command over his own actions, and over the actions and property which is his own, and which is to remain his own, or to become that of his family according to his will — why should it be thought an unreasonable thing, that, where there is no express con- tract, the implied contract shall be taken to be that the wife is to look to the law of the country where the husband dies for the right she is to enjoy in case the husband thinks proper to die intestate ? " It will be observed that the whole point of what Lord Eldon argues is that the whole of the property, apart from express contract, is abso- lutely and entirely the husband's, and that as by law he can dispose of it as he will, it is not unreasonable that he should be at liberty to do something which by its legal effect will change what I think are inac- curately described as the rights of the wife, but are accurately described as what would have been the rights of the wife if no change had taken place, because in substance she has until the husband's death no rights at all. Doubtless it is true that, according to the authorities on Scottish law, the right of the wife is no right at all in its strict sense. When speak- ing of the jus mariti it is described as a legal assignation to the hus- band, and in commenting on this authority, the late Mr. Fraser, while at the Scottish Bar, in his book on the Law of Husband and Wife, 2d ed. vol. i. p. 677, says : "At a very early period of our law, the dis- tinction between the two rights was recognized. The right of admin- istration was regarded as being nothing more than its name imports — a right of administering the property of the spouses ; while the jus mariti was something separate and superior, its purpose being to trans- fer the property from one spouse to the other. The distinction is set- tled and taken in a number of cases ranging from an early period to the present time, and has not been so clearby marked in some institu- tional works, solely from the desire of the writers to reconcile it with the notion of an absolute veritable communio." . . . " The distinction is thus stated in argument in the Session Papers of Gowan v. Pursell : SECT. V.] DE NICOLS V. CURLIER. 213 The jus mariti over the movables is a right during the existence of the marriage of absolute property. The husband may sell, or squander, or wastefully destroy the movables that fall under communion.' How- different the position of the wife is under the French law is sufficiently \ndieated, in contrast to the above extract, by section 1443 of Code Civil, which enacts that: "1443. A separation of property can only be judi- cially sued for by the wife whose dowry is in danger, and when the disorder of the husband's affairs is such that there is reason to fear that his prop- erty will not be sufficient to satisfy the wile's rights and claims. Any Voluntary separation is void." And if the propositions are put shortly — that the wife acquires no proprietary rights by marriage under the Scotch law at all, but under the French law acquires a real proprietary right— the distinction between the two systems is evident enough. The communio bouorum in Scotland is a mere fiction. In France it is a reality, and in England, as the Master of the Rolls says, the parties to the litigation now being discussed, Mr. and Mrs. Hog, were both Eng- lish, married in England, where her unsettled property, existing and after acquired, became the property of Mr. Hog by the mere fact of the marriage, and gave Mrs, Hog no proprietary right whatever to the movable property in question. Once it is admitted that the marriage gives a proprietary right (and therein is the importance of the distinction Lord Eldon took between what was inaccurately argued in that case as a proprietary right con- ferred by the fact of marriage and a real proprietary right conferred by specific contract), the anomaly pointed out by the Master of the Rolls and sought to be explained becomes at once intelligible. It is only material as illustrating what was the prevailing train of thought in the minds of Lord Eldon and Lord Rosslyn. Both of them speak of the words " implied contract," by which I presume they mean Implied from the relation of husband and wife, and not unnaturally they deduce the con- clusion that if it is implied from that relation only the husband's change of domicil may bring with it the consequential change from such relation. Here, however, as I have endeavored to point out, the French mar- riage confers not only an implied but an actual binding partnership pro- prietary relation fixed by the law upon the persons of the spouses, the binding nature of which, it appears to me, no act of either of the parties contracting marriage can affect or qualify. I can only account for the absolutely inaccurate use of the Scottish term jus relictm as arising from a reference to a dispute thai appears to have existed in the Scottish authors as to whether those rights flowed from the communion, whereas, to quote again from Mr. Eraser's book, p. 671, where he says: " It has been found in accordance with the opinions of the French commentators, of Dirleton, and other law yers of our own country, that the jus reliotCB and legitim are in all respects the same; that they are mere casual contingent rights during the subsistence of the marriage, existing then only in hope, and coining 214 DE NICOLS V. CUKLIEfi. [CHAP. VIL into proper rights merely at its dissolution ; that they are not rights of division of a fund already held in common, but rights of debt against the husband's executors, constituting the widow and the children cred- itors, whose right comes into being by the husband's death, and second- ary creditors too, for all other debts must be paid before theirs." It is, therefore, as I understand, that when once Lord Eldon came to the conclusion that the husband and wife had become Scottish domiciled spouses, the property not affected by a previous complete and irrevo- cable right would properly be distributed according to Scottish law. It follows, therefore, if I am right, that that case is not binding on your Lordships, and that we are at liberty to decide the question now in dispute, in accordance with reason and common sense. I therefore move your Lordships that the order appealed from be reversed, and that in respect of costs, as I understand this is only one question in the summons which comprehends other questions also in debate, the costs of this appeal should be costs in the summons. Lord Macnaghten. My Lords, in 1854 Mr. De Nicols, the testator, and the appellant, who is now his widow, intermarried in Paris. They were both French by birth and both domiciled at the time in France. They married without a contract of marriage, and consequently under the law of France the}' became subject to the system of community of goods. • In 1863 Mr. and Mrs. De Nicols left Paris and came to London. The}- acquired an English domicil, and in 1865 Mr. De Nicols obtained a certificate of naturalization in this country. From that time forward their residence in England was continuous. Mr. De Nicols became a restaurant proprietor in London. He was successful in business, and amassed a large fortune, consisting of both movable and immovable property. Mr. De Nicols died in February, 1897, having made a will in the English form and language. The question for your Lordships' consideration is whether Mr. and Mrs. De Nicols continued subject to the system of community of goods after they became domiciled in England. On the one hand it is con- tended that the change of domicil from French to English destroyed the community altogether, and, therefore, that the testator's will op- erated upon the whole of the property vested in him which, but for that change, would have been common. On the other hand it is said that the community continued notwithstanding the change of domicil, and that Mr. De Nicols remained bound by the article of the Code Civil, which provides that the testamentary donation by the husband cannot exceed his share of the community. If the case were not embarrassed by the judgment of this House in Lashley v. Hog, which was discussed so full} 7 at the bar, it would not, I think, present much difficulty. Putting aside Lashley v. Hog for the moment, the only question would seem to be what was the effect according to French law of the SECT. V.] L>E NICOLS V. CURLIKR. 215 marriage of Mr. and Mrs. De Xicols without a marriage contract ? Upon that point there cannot, I think, be any room for doubt. It is proved by the evidence of M. Lax, the expert in French law called on behalf of the appellant, that, according to the law of France, a husband and wife intermarrying without having entered into an antenuptial con- tract in writing are placed and stand b\' the sole fact of the marriage precisely in the same position in all respects as if previously to their marriage they had in due form executed a written contract, and thereby adopted as special and express covenants all and every one of the pro- visions contained in articles 1401 to 1496 in Title V. of the Code Civil, headed "Of Marriage Contracts and the respective rights of spouses." In support of this conclusion. M. Lax refers to the relevant articles of the Code and to a decision of the highest authority pronounced b}- the Cour de Cassation in January, 1854. The case as reported by Sirey presents the argument so clearly and so concisely that I may be par- doned for referring to it more in detail. The summary in Sirey's Reports is as follows : (Tables Generales [Contrat de Manage] para- graphe 8.) " The conjugal association as to propert}- once formed at the time of the marriage by the operation of the law of the domicil or nationality of the husband cannot be altered later on either by a change of nationality or by the acquisition of a new personal domicil subse- quently to the marriage." The case was this : An Englishman and an Englishwoman, a Mr. and Mrs. Boyer, were married in England with- out any settlement. Afterwards they went to France and jointly ac- quired immovable property there. The husband became a French citizen. The wife died first. On her death duty was demanded and paid on one- half of the property as having devolved upon her children as her next of kin. An action was brought for the return of the duty. The tribu- nal of Lille ordered repaj'ment, holding that "the matrimonial compact in respect of property is as immutable as the marriage itself, of which it is an accessory." The revenue authorities appealed. The Cour de Cassation affirmed the decision. They founded their judgment upon their view of English law, which seems right enough, and upon the fol- lowing considerations: that " the rule of the marriage of the spouses Boyer has followed them to France when the}' went there to settle and there acquired property," and that " the said rule has the same force as if a formal contract had been entered into between the said spouses for the regulation of their fortune." Although this reasoning may not seem quite in accordance with the opinion which Lord Eldon expressed in Lashley '•. I log, as to the effect of an English marriage without, a settlement, it indicates, I think, the view which, according to French law, would be taken of the compact as to property constituted by a French marriage under the Code Civil without an antenuptial agreement. The expert who was called on behalf of the executors does not attempt to contravene this conclusion of law. He endeavors to mini- mize its effect by treating it as a self-evident proposition — as in fact 216 DE NICOLS V. CURLIER. [CHAP. VII. being nothing more than what the Code declares. He adds, however, that in his opinion the effect of a change of domicil or nationality upon the community system was never considered by the framers of the Code. That may be so. But if there is a valid compact between spouses as to their property, whether it be constituted by the law of the land or by convention between the parties, it is difficult to see how that compact can be nullified or blotted out merely by a change of domicil. Why should the obligations of the marriage law, under which the parties contracted matrimony, equivalent according to the law of the country where the marriage was celebrated to an express contract, lose their force and effect when the parties become domiciled in another country? As M. Lax points out, change of domicil and naturalization in a foreign country are not among the events specified in the Code as having the effect of dissolving or determining the community. Let us suppose a case the converse of the present one. Suppose an English- man and an Englishwoman, having married in England without a set- tlement, go to France and become domiciled there. Suppose that at the time of the acquisition of the French domicil the husband has £10,000 of his own. Why should his ownership of that sum be im- paired or qualified because he settles in France ? There is nothing to be found in French law, nothing in the Code Civil, to effect this altera- tion in his rights. Community of goods in France is constituted by a marriage in France according to French law, not by married people coining; to France and settling there. And the community must com- mence from the day of the marriage. It cannot commence from any other time. It appears to me, therefore, that the proposition for which the executors contend cannot be supported on principle. That, I think, was the view of the Court of Appeal. But they considered that the judgment of Lord Eldon in Lashley v. Hog, compelled them to decide in favor of the executors. 1 It appears to me that the case is not governed by the decision in Lashley v. Hog, and I think the appeal ought to be allowed. Lord Morris, Lord Shand, and Lord Brampton concurred. 2 DE NICOLS v. CURLIER. Chancery. 1900. [Reported [1900] 2 Chancery, 410.] The effect of the change of domicil with reference to the testator's movable goods only having been determined in the appeal to the House 1 The learned Lord here stated and commented upon the case of Lashley v. Hog. .-Ed. 2 The concurring opinions are omitted. Ace. Blatchford v. Blatchford, 1 E. Dist. Ct. (Cape Colony), 365. —Ed. SECT. V.] DE N1C0LS V. CURLIEE. 217 of Lords, the summons now came on for further hearing with refer- ence to the testator's real and leasehold property. Kekewich, J. Undoubtedly the House of Lords considered and de- termined merely the question whether the marriage contract affected movable goods notwithstanding the change of domicil, and all that was said must be read with reference to that question, as the only one to which attention was directed. Albeit so restricted, the decision pro- ceeded on the broad principle that a contract operating by force of law in the absence of expression by the parties is as complete and as obli- gatory as a contract expressed, and must have effect given to it on the same footing. Unless, therefore, there is some inherent disability in some particular property to be bound by such a contract, it must equally be applied to and enforced against all falling within its scope, and this is according to the language of the Code and the evidence given in explanation of it. On the present occasion the court is asked to determine whether in enforcing the contract it is right to include freehold and leasehold estates in England — that is, what we term real estate and chattels real, as distinguished from personal estate other than chattels real which is covered by the decision of the House of Lords. Assuming that these freehold and leasehold estates are within the scope of the contract, it is impossible to avoid the conclusion, that they are affected by it, unless, to repeat what has been already said, there is a disability inherent in this species of property. There are, therefore, two questions for consideration — one of fact — namely, whether these estates are within the scope of the contract ; the other of law, whether they can be affected by it. The first question depends on the evidence which was before the House of Lords, some further evidence given by affidavit and orally on the hearing of the present application, and additional evidence adduced under leave given after the hearing in consequence of a letter from one of the witnesses which was communicated to the court. This evidence was directed to the proper meaning of " immeubles " in the French Code. There is no difficulty about the meaning of the word as regards the character of property comprised in it. It means, broadly, the soil itself and that which is attached to the soil as distinguished from that which, being unattached, is therefore movable. As in our own system of law so in that of France, some things are, from their close connection with the land, treated as attached to it, and, therefore, immovable; but these exceptions do not impair the general description, and are of no im- portance here. The difficulty which arose was whether the term com- prised immovables abroad — that is, beyond France. The words of the Code are, apparently, wide enough to cover all, wherever situate, and, if it could be treated as an English instrument which the court is competent to construe, it would be impossible to avoid the <• 'lusion that this is its real meaning. But to arrive at a conclusion respecting the construction of the Code in this particular is beyond the compe- tence of the court. It is a matter of fact with which the court can 218 DE NICOLS V. CURLIER. [CHAP. VIL only deal according to the testimony of those qualified to give it. Hence the oral and the additional evidence subsequently given, to which reference has already been made. That evidence has set the matter at rest, and removed all difficulty. It may be stated in general terms that, unless an exception is established in a particular case on the ground of public policy (and there is no suggestion of that here), the provisions of the Code as regards u imraeubles " are of universal appli- cation — that is, apply equally to immovable property situate in France and to that situate in a foreign country. Turning now to the question whether there is any objection in law to the contract operating according to the intention of the parties so as to bind the freehold and leasehold estates, one is at once confronted by the principle which distinguishes obligations respecting real estate from those which affect personal estate. That principle is well established, and is to be found stated in different language in many books. It will suffice to cite one. In Story on the Conflict of Laws, § 158, the learned author says this : — " The result of this reasoning (and it certainly has very great force) would seem to be, that in the case of a marriage without any express nuptial contract, the lex loci contractus (assuming that it furnishes any just basis to imply a tacit contract) will govern as to all movable property, and as to all immovable property within that country, and as to property in other countries, it will govern movables, but not im- movables, the former having no situs, and the latter being governed by the lex rei sitce." In the following section — 159 — he expounds this subject in a man- ner so apposite to the case in hand that it is worth while to quote it at length. It runs thus : — " Perhaps the most simple and satisfactory exposition of the subject, or, at least, that which best harmonizes with the analogies of the com- mon law, is, that in the case of a marriage where there is no special nuptial contract, and there has been no change of domicil, the law of the place of celebration of the marriage ought to govern the rights of the parties in respect to all personal or movable property, wherever that is acquired, and wherever it may be situate ; but real or immov- able property ought to be left to be adjudged by the lex rei sitce, as not within the reach of any extraterritorial law. Where there is any special nuptial contract between the parties, that will furnish a rule for the case, and as a matter of contract, ought to be carried into effect everywhere, under the general limitations and exceptions be- longing to all other classes of contracts." According to the decision of the House of Lords, there is here a special nuptial contract between the parties ascertained by reference to the Code, but not less precisely ascertained because it was not reduced into writing in connection with the particular marriage. It ought, there- fore (to adopt the language just quoted), to be carried into effect every- where, but under the limitations and exceptions belonging to all other SECT. V.] DE NICOLS V. CURLIER. 219 classes of contracts, one of which is, that as regards immovables, the lex rei sitce must prevail. There is nothing in the common law of England to make the contract, which we have already seen to be defi- nite, unenforceable respecting the freeholds anil leaseholds in ques- tion, and if there be any obstacle, it must be found in some statutory provision. There is none but the Statute of Frauds, but that does raise a formidable objection. Reference was made in argument to both the 4th and 7th sections of the statute. I do not propose to consider which of them is the more applicable, because, without doubt, either one or the other prohibits the creation of equitable interests in land, such as sought to be established here, except by writing under the hand of the creator of the trust. Nevertheless, it is insisted that the statute has no application to the circumstances of this case, and that the agreement between the parties made in consideration of marriage is sufficiently obligatory notwithstanding the absence of any writing. That is the point I am called upon to determine. It is settled that there may be an agreement of partnership by parol, notwithstanding that the partnership is intended to deal with land, and that to an action to enforce such agreement the plea of the Statute of Frauds will not avail. In such an action, therefore, the rights of the parties to the land, their respective interests in it, and their mutual obligations re- specting it, may and must be determined and enforced notwithstanding there has been no compliance with the statutory provision. The au- thorities for this are not numerous, but they are conclusive — namely. Forster v. Hale, 3 Ves. 696, 5 Yes. 308, 4 R. R. 128 ; and Dale r. Hamilton, 5 Hare, 369. In the latter case Wigram, V. C, applied this ruling to a case where the partnership was intended to deal exclusively with land. Lord Lindley in his work on Partnership, 6th ed. p. 89, says that the latter case goes a long way towards repealing the Statute of Frauds, and that it is difficult to reconcile it with sound principle or the more recent decision of Caddick v. Skidmore (1857), 2 Ue G. & J. 52. This is a strong adverse comment, but yet I am bound to treat the decision as sound, and I did so in Gray r. Smith, 43 Ch. D. 208. Whether it is competent for the Court of Appeal now to disturb the ruling above quoted, or whether being competent the court would be willing to do so, is not for me to say ; but at any rale I must take the ruling to be established. It by no means follows that I ought to ex- tend it, and it is fairly open to question whether the rule obtaining in contracts of partnership is properly applicable to a contract of mar- riage In one sense, no doubt, that is also a contract of partnership : but no one would, I think, venture to rely on this, the ruling in the two cases referred to having reference to commercial partnerships with which the court was there exclusively concerned. Nevertheless, the reasoning of the Lord Chancellor in Forster r. Hale seems to me to show that- he intended to lav down a general rule, which may be applied without extension to the case in hand. This. 1 think, was the view of Wigram, V. C, in Dale V. Hamilton, and also, as it seems to me, ot 220 SAUL V. HIS CREDITORS. [CHAP. VII. Lord Lindley, who cites the passage from the Lord Chancellor's judg- ment in Forster v. Hale, which supports it. The Lord Chancellor held that the question whether there was a partnership or not must be tried as a fact, and if it were established by evidence that there was a partner- ship, then the premises necessary for the purposes of that partnership would by operation of law be held for the purposes of that partnership. It is established here by evidence that land acquired 03- either of the two parties to the contract would by force of the contract be held by him or her on certain terms described briefly by the phrase, " community of goods." Any lands subsequently acquired are an acquisition brought within, and are required to fulfil the purposes of the contract, and ac- cording to the Lord Chancellor's reasoning they are by operation of law held for those purposes. There may be error in this way of stating the case and applying the Lord Chancellor's ruling, but I am unable to discover it, and must, therefore, hold that the freehold and leasehold estates are as much subject to the community of goods as the movables which have been held subject to it by the decision of the House of Lords. 1 SAUL v. HIS CREDITORS. Supreme Court, Louisiana. 1827. {Reported 5 Martin. New Series, 569.] Porter, J. 2 The tableau of distribution filed by the syndics of the insolvent was opposed in the court of the first instance ; and the oppo- sition being sustained, an appeal has been taken to this court, by the syndics, by the Bank of the United States, the Bank of Orleans, and the Bank of Louisiana. The claims admitted by the judge a quo, and which are now con- tested here, are : 1st. That of the children of the insolvent, who claim as privileged creditors for the amount inherited by them from their deceased mother. . . . From the facts admitted by the parties, which admission makes the statement on this appeal, it appears : That Saul and his wife inter- married in the State of Virginia, on the 6th of February, 1794, their domicil being then in that State ; that they remained there until the year 1804, when they removed to the now State of Louisiana; that they fixed their residence here, and continued this residence up to the year 1819, when the wife died; that after their removal from Virginia, and while living and having their domicil in this State, a large quantity of property was acquired, which at the death of the wife remained in the possession of her husband, the insolvent. 1 Ace. Scheferling v. Huffman, 4 Oh. S. 241 (semble). — Ed. 2 Parts of the opinion are omitted. — Ed. SECT. V.] SAUL V. HIS CREDITORS. 221 The children claim the one-half of the property, as acquests and gains, made by their father and mother in this State. The appellants contend, that as the marriage took place in the State of Virginia, by whose laws no community of acquests and gains was permitted, the whole of the property acquired here belonged to the husband. This statement of the matter at issue shows, that the only question presented for our decision is one of law ; but it is one which grows out of the conflict of laws of different States. Our former experience had taught us, that questions of this kind are the most embarrassing and difficult of decision that can occup}' the attention of those who pre- side in courts of justice. The argument of this case has shown us, that the vast mass of learning which the research of counsel has fur- nished, leaves the subject as much enveloped in obscurity and doubt as it would have appeared to our own understandings had we been called on to decide without the knowledge of what others had thought and written upon it. . . . Recourse must be had to the former laws of the country. The positive regulations of Spain on this subject are contained in two laws : one of the Fuero Real, and the other of the Partidas. That part of the law of the Partidas which directly applies to the case before the court is in the following words : " E dezimos, que el ple3 - to que ellos pusieron entre si, deve valer en la manera que se avinieron ante que casassen, o quando casaron ; e non deve ser em- bargado por la costumbre contraria de - aquella tierra do fnesen a morar. Esso mismo seria, maguer ellos non pusiessen pleyto entre si ; ca la costumbre de aquella tierra do fizieron el casamiento, deve valer, quanto en las dotes, e en las arras, e en las ganancias que fizieron ; e non la de aquel lugar do se cambiaron." P. 4, tit. 11, ley 24. " And we saj', that the agreement they had made before or at the time of their marriage ought to have its effect in the manner they may have stipulated, and that it will not be avoided by the custom of the place to which they may have removed. And so we say it would be if they had not entered into any agreement ; for the custom of the country where they contracted the marriage ought to have its effect as it regards the dowry, the arras, and the gains they may have made, and not that of the place to which they may have removal." Some verbal criticism has been exercised on this law. It is con- tended by one of the parties, that it only intended to provide for the gains made before the removal of the married couple ; or, at all events, that the words used leave the sense doubtful. By the other, that it regulates all, whether made before or after they left the country in which the marriage took place. The expressions used, though not free from all ambiguity, as the appellants have argued, we think ought to receive the construction for which they contend. The law was so understood by the commentators of that day, and the pre- ceding parts of it, compared with the clause in which the obscurity is said to exist, serve to support this interpretation. . . . 222 SAUL V. HIS CREDITORS. [CHAP. VII. Nothing can be more satisfactorily shown than the opinion of tbe commentators on the statutes of Spain in relation to this particular subject. From the time Gregorio Lopez published his work on the Partidas, in the year 1555, down to Febrero, in the year 1781, the writings of no jurist of that country have been produced to us, who treats of this matter, that does not declare that the law of the Parti- das, already cited, must be limited to property acquired in the place where the marriage is contracted, and that it does not extend to ac- quisitions made in another country, to which the parties may have removed, where a different rule should prevail. In the long list of writers who have been cited in support of this doctrine are to be found some of the most illustrious of whom the middle ages could Doas t, — James of Arena, Gulielmus de Cuneo, Dynus, Raynaldus, Jean Favre, Baldus, Alciat, and Ancharanus, Gregorio Lopez, on the 4 Partidas, tit. 11, law 24; Matienzo Commentaria, lib. 5, tit. 9, nos. 73 and 74 ; Febrero, p. 2, lib. 1, cap. 4, § 2, no. 62. Trying the question, therefore, by authority, no doubt can exist, on which side it preponderates, in the country where the statute was passed. Admitting, therefore, for a moment, that the letter of the law of the Partidas was violated, by the construction given to it by the commentators ; that violation acquiesced in for centuries, by lawyers, courts, and the sovereign authority of the country, makes as much a part of the law of Spain at this day as if the statute had been modified by the power in the State, in whom the right of legislation was vested. In looking into the laws of any country, we stop at the thresh- old, if we look no further than their statutes ; and what we should see there would, in most instances, only tend to mislead. In every nation that has advanced a few steps beyond the first organization of political society, and that has made any progress in civilization, a more extensive and equally important part of the rules which govern men, is derived from what is called, in certain countries, common law, and here, jurisprudence. This jurisprudence, or common law, in some nations, is found in the decrees of their courts ; in others, it is furnished by private in- dividuals, eminent for their learning and integrity, whose superior wisdom has enabled them to gain the proud distinction of legislat- ing, as it were, for their country, and enforcing their legislation by the most noble of all means : that of reason alone. After a long series of years, it is sometimes difficult to say whether these opinions and judgments were originally the effect of principles previously existing in society, or whether they were the cause of the doctrines which all men at last recognize. But whether the one or the other, when acquiesced in for ages, their force and effect cannot be distin- guished from statutory law. No civilized nation has been without such a system. None, it is believed, can do without it; and every attempt to expel it only causes it to return with increased strength on those who are so sanguine as to think it may be dispensed with. Duponceau on Jurisdiction, 105. . . . SECT. V.] SA.UL V. HIS CREDITORS. 223- It is most clear, then, that this interpretation, which limits the law of the Partidas to the gains made in the country where the marriage was contracted and excludes from its operation property acquired after a change of residence, comes to us recommended and fortified by every sanction that can give it value in the minds of those who sit in judgment, and whose duty it is to pronounce what the law is, not what it ought to be. The appellants, however, contend, that although such may be the construction given to the statute in Spain, that construction is not binding on the court, because this is a question of jurisprudence not peculiar to any distinct nation, but one touching the comity of nations, and embracing doctrines of international law, on which the opinions of writers not living in Spain are entitled to equal weight with those who professedly treat of her laws. The strength of the plaintiff's case rests mainly on this proposition, and it is proper to examine it with the attention which its importance in the cause requires. But though of importance, it is not of any difficulty. By the comity of nations a rule does certainly exist, that contracts made in other countries shall be enforced according to the principles of law which govern the contract in the place where it is made. But it also makes a part of the rule that these contracts should not be enforced to the injury of the State whose aid is required to carry them into effect. It is a corollary flowing from the principle last stated, that where the positive laws of any State prohibit particular contracts from having effect, according to the rules of the country where they are made, the former should control. Because that prohibition is supposed to be founded on some reason of utility or policy advantageous to the country that passes it, which utility or policy would be defeated if foreign laws were permitted to have a superior effect. On the very subject-matter now before us, the writers who treat of it, although disputing about almost everything else, agree in stating that a real statute, that is one which regulates property within the limits of the State where it is in force, controls personal ones, which follow a man wherever he goes; indeed, it has been expressly, and with great propriety, admitted in argument, that where the personal statute of the domicil is in opposition to a real statute of situation, the real statute will prevail. Boullenois Disc. Prelim, p. 21 ; ibid, des Demis. quest. 6, 163 ; Bouhier sur la Coutume du Duche de Bourgoyne, cap. 23, 461 ; Rodenburgh de Statutor. diversit. tit. 2, cap. 5, no. 6. If this be true, the question whether the opinions of foreign jurists shall control those of the country where the statute is passed, is at once settled. If the right of a nation to pass the statute, which will affect a contract made in another country, be admitted, the right cannot be contested to her to Bay whether she has done so or not. She surely is the best and safest expounder of her own laws. And we repeat here, what we said a few days since, on nearly the highest 224 SAUL V. HIS CREDITORS. [CHAP. VII. authority to which we could refer : " That no court on earth, that professed to be governed by principle, would, we presume, undertake to say that the courts of Great Britain, or France, or any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal b^y which that misunderstanding was to be cor- rected." 10 Wheat. 159. And if we did recur to the jurists of France and Holland for in- formation, what would we get in place of the well-established rules in Spain ? Much to confuse, and little to enlighten us. We should find great learning and ingenuity exercised by some to show that the law which regulates the rights of property among married persons is a personal one, which follows the parties wherever they go ; by others, that it is real, and limited to the country by which it is made. But not one of them denies the power in a nation to pass a law such as has been lately enacted by the State of Louisiana, that a married couple moving into it from another State shall be governed by her laws as to their future acquisitions. None of them professes to comment on the laws of Spain, which her jurists say have the same effect with our late statute ; the\ T are not even mentioned by them. How wholly unsatisfactory, therefore, any general reasoning must be on different customs and usages, to prove that the law of the Fuero is a personal, and not a real statute, we need not sa}\ . . . An examination of the different treatises on this subject has con- vinced us that the greater number of the lawyers of those countries are of opinion that in settling the rights of husband and wife on the dis- solution of the marriage, to the property acquired, the law of the place where it was contracted, and not that where it was dissolved, must be the guide. Such was the jurisprudence of the Parliament of Paris. It was the opinion of Dumoulin, of Boullenois, of Rodenburgh, of Le Brun, of Froland, of Bouhier, of Stockmans, of Pothier, and it is that of Merlin. On the other side are found D'Argentre, Cravette, Everard, Vandermeulen, the Parliament of Rouen, the Supreme Court of Brabant, and that of Metz. But it is evident, the opinions of the greater number of those who think that on the dissolution of the marriage the law of the place where it was contracted should regulate the rights of the spouses to the property possessed by them is founded on an idea which first originated with Dumoulin, that where the parties marry without an express contract, the} - must be presumed to contract in relation to the law of the country where the marriage took place, and that this tacit contract follows them wherever they go. It is particularly worthy of remark, that Dumoulin, the founder of this system, was of opinion that the statute regulating the com- munity was real, and that it was to escape from the consequences of this opinion he supposed a tacit contract, which, like an express one, followed the parties wherever the}' went. Such, at least, was the opinion which Boullenois entertained of Dumoulin's sentiments ; and SECT. V.] SAUL V. HIS CREDITORS. 225 it appears supported by quotations which he makes from his works. Boullenois, Traite de personalite et de realite des lois. Obs. 29, p. 740, 757, 758. Some of those who have adopted the conclusions of Dumoulin in regard to the marriage contract, treat the idea of a tacit agreement as one which exists in the imagination alone. But the greater number seem to have embraced it ; and we are satisfied it is the main ground on which the doctrine now rests in France. So far, therefore, as great names can give weight to any opinion, it comes to us in a most im- posing shape, but to our judgment it is quite unsatisfactory. Admitting it for a moment to be true that when parties married there was a tacit contract between them, their rights to property sub- sequently acquired should be governed by the laws of the country where the marriage took place ; that tacit agreement would still be controlled by the positive laws of any country into which they might remove. This is admitted by Dumoulin himself, who, after treating of the tacit agreement, and stating that the statute is not legal but conventional, " Statutarium proprie non este nee legale, sed con- ventitium," adds, such tacit convention cannot have this effect in another place, where there exists a contrary statute, which is absolute and prohibitive, '* alias si statutum esset absolutum et prohibitorium, non obstantibus pactis factis in contrarium : tunc non haberet locum ultra fines sui territorii." Dumoulin on the first book of the Code, verbo cone, de stat. et consuet. loc. Froland, Memoires sur les statuts, chap. 4, 63. If such be the consequence where the statute is prohibitive, we do not see why the same result should not follow from a real statute, which regulates things within the limits of the countr}- where it is in force. The reason for both is the same, namely, that the laws of the country where the contract is sought to be enforced are opposed to it. Why the one should have effect and the other should not, we profess to be unable to distinguish. It may be a question whether the statute is real or not, but the moment it is admitted to be so, it regulates all property acquired within its authority; then, according to the principles of Dumoulin, the tacit agreement can no more control it than it could the law which positively forbade such tacit agreement from having effect. So that even admitting this tacit agreement, we are brought back to the point from which we started ; that is, whether the law regulating the right of husband and wife be real or personal ? But without agreeing with those who have treated the idea of Dumoulin as one purely of the imagination, we think that he gives to this tacit consent a much more extended effect than it is entitled to; that in supposing when parties marry, they intend the laws of the place where the contract is made should govern them wherever they go, he begs the question; and that the first thing to be settled is, whether these laws do govern them wherever they go. VOL. II. — 15 226 SAUL V. HIS CKEDITOKS. [CHAP. VII. We are now treating, let it be remembered, of a case such as that before us, where there is no express contract, and the argument is, that the parties not having entered into an express agreement, the presumption must be, they intended their rights to property should be governed by the laws of the country where they married. This is admitted. But then this presumption, as to their agreement, can- not be extended so as to give a greater effect to those laws than they really had. If it be true those laws had no effect beyond the limits of the State where they were passed, then it cannot be true to suppose the parties intended they should have effect beyond them. The ex- tent of the tacit agreement depends on the extent of the law. If it had no force beyond the jurisdiction of the power by which it was enacted; if it was real, and not personal, the tacit consent of the parties cannot turn it into a personal statute. They have not said so ; and they are presumed to have contracted in relation to the law, such as it was, to have known its limitations, as well as its nature, and to have had the one as much in view as the other. If the law of Vir- ginia should have been, that for twenty } T ears, the acquisitions made by the parties belonged to one of them, and they married without an express stipulation to the contrary, they would be presumed to have con- tracted in reference to this limitation of time. If, on the contrar} 7 , the law is limited as to place, the tacit agreement which is founded on a supposed consent that the law should govern them, must be considered to have that limitation in view. In one word, the parties are presumed to have agreed, that the law should bind them as far as that law ex- tended, but no further. So that this doctrine brings us back again to the inquiry, was the statute real or personal? Did it extend bejond the limits of the country where the marriage took place, or did it not? Whichever it may be found to be, the parties must be supposed to have contracted. In the absence of anything expressed to the contrary, we cannot presume they intended to enlarge or restrain the operation of the law. The most familiar way of treating this idea, of tacit contracts, being made in relation to the laws of the country where they are entered into, is to say, that the agreement is to be construed the same way as ir those laws were inserted in the contract. Now, supposing parties to marry in Louisiana, and that our statute, providing for the community of acquests and gains, is real and not personal ; that it divides the property, acquired while in this State, equally between the husband and wife, but does not regulate that which they gain in another country to which the} 7 remove : the insertion of this law in a contract would be nothing more than a declaration, that while residing within this State, there should be a community of acquests and gains. An agreement such as this could not have the same force as an express one, by which the parties declared there should be a community of acquests and gains, wherever they went : for the one has no limitation as to place, and the other has. The maxim, therefore, which was so much pressed on us SECT. V.] SAUL V. HIS CREDITORS. 227 in argument, taciti et evpressi eadem vis, is only true where the law to which the tacit agreement refers contains the same provisions as the written contract. It was evidently on this distinction the cases of Murphy v. Murphy, 5 Mart. R. 83, and Gales v. Davis' Heirs, 4 Mart. R. 645, were dif- ferently decided in this court. In the former, there was an express contract that there should be a community of acquests and gains be- tween the parties, even though they should reside in countries where different laws might prevail. In the latter there was no express agree- ment ; and the parties were not presumed to have made a tacit one, contrary to the law of the place where they married. The} - were not supposed to have agreed that a real statute, which governed them only while there, was to follow them as a personal one, and regulate their property in another State. If principles so plain required any authority, we would find it in the very author on whom the appellants principally rely. Dumoulin, after stating that the tacit contract will be controlled by a law that is contrary to it, in the country where the marriage is dis- solved, adds : that it will be different where the agreement is express. " Nisi expresse de tali lucro conventium fuisset, quia pactio bene ex- tenditur ubique, sed non statutum mere." Froland, Memoires sur les statuts, cap. 4, p. 63. Having thus stated the reasons wiry this doctrine of a tacit contract cannot be admitted b}' us to the extent pressed by the counsel, it only remains for us to examine whether the law of the Fuero was a real or personal statute. We consider it real. It appears to us to relate to tilings more than to persons ; to have, in the language of D'Aguesseau, the destination of property to certain persons, and its preservation in families, in view. It gives to the wife and her heirs the one-half of that which would otherwise belong to the husband. Boullenois, who rejects Dumoulin's idea of a tacit agreement, says the statute which regulates the community is a personal one, because it fixes the State and condition of the spouses ; and he goes so far as to declare, that if his adversaries will not allow this doctrine to be correct, then the stat- ute is real, for on no other ground can it be considered personal. We think the State and condition of both husband and wife are fixed by the marriage, in relation to everything but property, independent of this law ; and as it regulates property alone, it is not a personal stat- ute. Boullenois, Traite des statuts, cap. 5, obs. 29, p. 751 ; cap. 2, obs. 5, 80. Upon reason, therefore, but still more clearly on authority, we think the appellants have failed to make out their case. We know of no question better settled in Spanish jurisprudence, and what is settled there cannot be considered as unsettled here. The jurisprudence of Spain came to us with her laws. We have no more power to reject the one than the other. The people of Louisiana have the same right to have their cases decided by that jurisprudence as the subjects of Spain have, except so far as the genius of our government, or our posi- 228 SMITH V. McATEE. [CHAP. VII. tive legislation, has changed it. How the question would be decided in that country if an attempt were made there on the authority of French and Dutch courts and lawyers, to make them abandon a road in which they have been travelling for nearly three hundred years, we need not sa}\ The question is sufficiently answered by the auto already cited, in which the adoption of the opinions of foreign jurists, in opposition to those of Spain, is reprobated and forbidden. We conclude, therefore, that a community of acquests and gains did exist between the insolvent and the mother of the appellees from the time of their removal into this State ; and that the court below com- mitted no error in placing them on the bilan as privileged creditors, for the amount of those acquests which remained in their father's pos- session at the dissolution of the marriage. 1 SMITH v. McATEE. Court of Appeals of Maryland. 1867. [Reported 27 Maryland, 420.] Crain, J. The attachment in this case was issued by the appellee to affect the proceeds of sale of the real estate of the wife, to pay the debt of the husband. The facts as presented in the record are, that Nicholas Leister and wife were citizens of this State until August, 1854, when they removed to Illinois, where they resided when this attach- ment issued. Before removing from the State Leister became indebted to the appellee, who has always resided in Washington County, Mary- land. The fund in controversy was derived from the sale of the real estate of Mary Gehr, the mother of Sarah Leister, the wife of Nicholas. Mary Gehr died in 1855, leaving real estate in Washington County, and by her last will and testament devised a child's share of said estate to Sarah, the wife of Nicholas. In January, 1856, a bill was filed in the Circuit Court for Washington County against Leister and wife and the other devisees, for the sale of the real estate for partition. The bill was answered by Leister and wife. In their answer Sarah, the wife of Nicholas, claimed her portion of the estate as her sole and separate estate, free from the debts of her husband, and insisted that the same should not be divested from her by a sale thereof. Nicholas, the husband, disclaimed all right, title, or interest at law or in equity to any portion of the estate of Mary Gehr, by virtue of his marriage with the said Sarah or otherwise. A decree was passed in the cause i This case is generally followed in this country , title in after-acquired personal as well as real estate vests according to the law of the new domicil. Besse v. Pellochoux, 73 111. 285; Longr. Hess. 154 111.482, 40 N. E.335; Hyman v. Schlenker, 44 La. Ann. 108 ; Muus v. Muus, 29 Minn. 115 ; Gidney v. Moore, 86 N. C 484 ; Castro v. lilies, 22 Tex. 479 ; Fuss v. Fuss, 24 Wis. 256. —Ed. SECT. V.] SMITH V. McATEE. 229 on the 12th of August, 1856, for the sale of the property, and in the decree it was provided that the proportion of the proceeds of the sale of the property allotted to Sarah should be deemed her separate estate, for her sole and separate use and benefit, free from any claim or control of her husband or his creditors. After the sale of the prop- erty the amount of the proceeds due Sarah was credited to her sole and separate use, and paid over to the appellant as her attorney, when it was attached by the appellee to pay the debt of her husband. At the trial of the cause two bills of exception were taken by the appellant ; the first to the admissibility of evidence, and the second upon the granting of the plaintiffs and the rejection of the defendant's prayers. To arrive at a proper solution of the questions to be deter- mined b\ r this appeal, we must ascertain the rights of Sarah, the wife, under the will of her mother and the proceedings and decree of the court, and whether the proceeds of the estate audited to her and re- ceived by Mr. Smith, as her attorney, were liable to be attached in our courts for the payment of the husband's debt. In 1841, the legisla- ture, recognizing the just and equitable right of the wife to the enjoy- ment of her real estate, passed a law to protect the real estate of the wife from the debts of the husband. This legislation in favor of the wife against the creditors of the husband so favorably impressed itself upon the public mind, that by the 38th section of the 3d article of the constitution of 1851, the legislature was required to pass laws neces- sary to protect the property of the wife from the debts of the hus- band during her life, and for securing the same to her issue after her death. The legislature, acknowledging the wisdom of this pro- vision, in obedience to the mandate of the constitution, enacted the law of 1853, chapter 245. That act provides that all the property of the wife acquired or received, after her marriage, by purchase, gift, grant, devise, bequest, or in a course of distribution, shall be protected from the debts of the husband, and not in any way be liable for the payment thereof. And to effect the objects of the law, the wife was given the benefit of all such remedies for her relief and security as then existed, or should be devised in the courts of law or equity, without the necessity of the interposition of a trustee. The object contem- plated by this law is too clear for doubt ; by its enactment the legis lature intended to give full protection and security to the property of the wife against the creditors of the husband, as previous to its enact- ment the cases of Peacock v. Pembroke and Clarke, 4 Md. Hep. 2«sn. and Turton's Ex'rs v. Turton, 6 Md. Hep., 375, had been decided by this court, and in each case the property was adjudged to be the hus- band's and subject to the payment of his debts. This act, soon aftei its passage, received a judicial interpretation in the case of Qnger and Wife v. Price, 9 Md. Rep., 552. In thai case, Mrs. Qnger had sold her potential right of dower, and invested the money in personal prop- erty, and it was held by this court to be exempted from the debts of the husband. The case of -Mrs. Leister is equally Btrong, and comes 230 SMITH V. MUA.TEE. [CHAP. VIL within the principle settled in Unger and Wife v. Price. She was the devisee of real estate, and with the consent of her husband the pro- ceeds of sale of the property under the decree of a court of equity were held to her sole and separate use, so audited to her and paid over to the appellant. But the appellee insists, that the proceedings and decree were not admissible evidence against him, because they were res inter alios acta. We admit, as a general rule, that judgments and decrees are evidence binding only between parties and privies. But there are many exceptions to this rule, and we are of opinion that this case forms one of the exceptions and comes within the principle settled by this court in the case of Key v. Dent, 14 Md. Rep. 96. The record was introduced in this case to show how the fund was derived, and that the conversion from realtj- into personalty was not to prejudice the rights of the wife. For that purpose, according to the decision in Key v. Dent and the authorities relied on by Justice Eccleston, who delivered the opinion of the court, the record was evidence. Head's Rep's, v. McDonald, 7 Mon. 207; 4 Phillips on Evidence, 920, 921, 977 (ed. of 1843). The record was confirmatory of the answers of the garnishee and proof that the decree was had as there set forth. It was a decree of a court of competent jurisdiction, which in the exercise of its powers as a court of chancery settled the property to the sole and separate use of Mrs. Leister. And although we find this right of the wife to her property, protected in this State by public policy, by stat- ute, and by a decree of a court of equity, yet it was earnestly con- tended by the learned counsel for the appellee, that a creditor of the husband had a right to attach this fund in our courts of justice for the debt of the husband, as by the laws of Illinois, where the husband and wife resided, the husband was entitled to all the personal property of the wife, and that by virtue of this law of the domicil the fund was vested in the husband. And he claimed this right to divest the wife of her property by the law of the domicil, on the ground of comity. In this case we cannot sanction such a right, for it has been decided that comity is overruled by positive law, and that it is only in the silence of any particular rule, affirming, denying, or restraining the operation of foreign laws, that courts of justice presume a tacit adoption of them by their own government. Gardner v. Lewis, 7 Gill, 395. It is cer- tainly competent for any State to adopt laws to protect its own prop- erty as well as to reguiate it, and "no State will suffer the laws of another to interfere with her own, and in the conflict of laws, when it must often be a matter of doubt which shall prevail the court which decides will prefer 'the laws of its own country to that of the stranger." Story's Conflict of Laws, § 28. The courts of our State have perfect jurisdiction over all personal property as well as real within its limits, belonging to the wife, and they have a right to protect both from the debts of the husband. If therefore our legislative enactment in regard to the property of the wife and the laws of Illinois conflict, it cannot be made a question in our own courts which shall prevail. " Where SECT. V.] HARRAL V. HARKAL. 231 there is no constitutional barrier, we are bound to observe and enforce the statutory provisions of our own State." Davis v. Jacquin, 5 Har. & J. 109 ; Gardner v. Lewis, 7 Gill, 395. As this fund by our laws is held by the appellant for the sole and separate use of Mrs. Leister, a creditor of the husband seeking a rem- edy against him in our courts must be governed and regulated by our laws ; for Justice Story says : " A person suing in this country must take the law as he finds it, and wherever a remedy is sought, it must be administered according to the lex fori; and such a judgment is to be given as the law of the State where the suit is brought authorizes/' Story's Conflict of Laws, §§ 571, 572. And in this court, in the case of Wilson & Co. v. Carson & Co., 12 Md. Rep. 75, Le Grand, Chief Justice, says : " The recognition of the laws of another State, in the administration of justice in this, is not a right stricti juris ; it depends entirely on comity, and in extending it, courts are always careful to see that the statutes of their own State are not infringed to the injury of their own citizens." We think these authorities decisive of the question, and that the appellant has a right to rely in a court of law upon the title of Mrs. Leister to the fund in controversy. Her right had not been divested by her own act or by operation of law, and the fund in his hands was not liable to be attached by the creditor of the husband. The views which we have expressed of the legal propositions govern- ing this case are conclusive upon the right of the plaintiff to recover, and it is unnecessary to examine the first bill of exceptions, to ascer- tain whether the evidence offered by the defendant of the laws of Illi- nois touching the rights of husband and wife were admissible or not. It follows from what we have said, that the instructions given by the court at the instance of the plaintiff and contained in the second bill of exceptions were erroneous. The prayers asked by the defendant's counsel embrace in our opinion the true theory of the law of the case and ought to have been granted. For these reasons we reverse the judgment of the Circuit Court. Judgment reversed, icithout procedendo. 1 HARRAL v. HARRAL. Court of Errors and Appeals, New Jkusey. 1884. [Reported 39 New Jersey Equity, '_>79.] Frederick F. Harral was born in Connecticut in 1842. He gradu- ated at Yale College in 1863, and at the College of Physicians and 1 Ace. Loftus v. Bank, 133 I'm. 97. As soon a- the proceeds <>f a married woman's Bepar:u- real estate are transmitted v< the matrimonial domicil, thej are held accord- intr to tlie law of the latter place. < lastleman V. .Jeffries. 60 Ala. 380. — Ed. 232 HARRAL V. HARRAL. [CHAP. VII. Surgeons in New York City, in 1868. He was married on the 20th of February, 1877, before the deputy mayor, in the city of Paris, to Clarice Marie Le Gars, a Frenchwoman. In May, 1878, he returned to this country, and died at Kirkbride's hospital for the insane, in Philadelphia, July 5, 1881. On the 9th of July, 1869, and before his departure for Europe, the decedent duly made and executed a will, devising and bequeathing all his property, real and personal, to his brother and sisters, and appoint- ing William Creighton Peet and Hamilton Wallis executors. This will was admitted to probate in the prerogative court of this State on the 31st of July, 1882. The widow filed this bill in the Court of Chancery of this State, to which the legatees under the will of her husband and the executors are parties. The prayer of the bill is that the personal estate of the decedent, so far as concerns the complainant's interest therein, should be distributed in accordance with the laws of France. On final hearing, on bill answer and depositions, the chancellor- made a decree in accordance with the prayer of the bill. From that decree the defendants appealed. Depue, J. The law of France in relation to the rights of husband and wife in the property of either spouse is established by the Code Napoleon. Before the French Revolution, the northern provinces of France were under the customary law, and the community of property governed the nuptial contract ; in the southern provinces the Roman law prevailed, and the contract was governed by the dotal system The Code Napoleon left the parties to elect the law by which the mar- riage should be governed ; and if no election was made, the commun- ity system was to prevail. 2 Kent, 187, note. Section 1391 of the Code provides that the parties may declare in a general manner that they intend to many either under the law of community or under the law of dowry. The community is either legal or conventional. Legal community is established either by a simple declaration that the parties marry under the law of community, or by a marriage without any con- tract on the subject. Sections 1400, 1497. There was no marriage contract between these parties with respect to property ; and if dis- position of the personal estate in question is to be made by the French law, it must be disposed of as community property. Community is divided by the Code into two classes — active and passive. The former relates to the disposition of property ; the latter, to liability for debts. The property which is comprised in the com- munity consists of (1) All the movable property which the married parties possessed on the day of the celebration of the marriage, and all movable property which falls to them during the marriage, by succes- sion, or even by donation, if the donor has not expressed himself to the contrary ; (2) All the fruits, revenues, interest, and arrears of w r hat nature soever they may be, fallen due or received during the marriage, SECT. V.] HAKRAL V. HARRAL. 23 • > and arising from property which belonged to the married persons at the time of the celebration of the marriage, or from such as has fallen to tuem during the marriage by any title whatsoever ; and (3) All im- movable property acquired during the marriage. Section 1401. This community, whether it be conventional or legal, commences from the day of the marriage contracted before the officer of the civil power. Section 1399. During the coverture the husband has the custody, control, management, and power of disposition (under some restric- tions) of the community property (sections 1421, 1422) ; and he may make a testamentary disposition of his portion of the community prop- erty, but of no more. Section 1423. After the death of the husband the wife may accept or renounce the community. Section 1453. If she accept it, her share — that is, the one-half part of the community property — is given to her, subject, in the partition, to certain specified deductions and allowances by way of compensation. Sections 1467, 1480. The complainant, in her bill, charges that the legal domicil of the decedent, at the time of his death, was in France, and insists that from the time of the celebration of her marriage with the testator, by force and operation of the laws of France, a legal community was established between her and her husband as to all the personal or mov- able property possessed or owned by either of them during the mar- riage, and in all the fruits, revenues, interest, and iucome thereof; and that upon the death of the testator she was entitled to have and receive, absolutely, for her own use and benefit, the one-half part of all such property so held in communit}- between herself and her husband, and that it was not in the power of her husband to dispose of that share or interest in said property, which, by the laws of France, belonged to her. The defendants, in their answer, admit that the testator was married to the complainant on the 20th of February, L977, at Paris ; but they say that the marriage was void for the reason that the testator at that time was of non-sane mind, and incompetent to enter into a contract of marriage. They admit that the testator lived in Paris for five years before his marriage, but deny that his legal domicil was, at the time of his marriage, or at any time, in France, and insist that distribution of his personal estate should be made under the Inns of New Jersey. They also say that by the law of France no man can become domiciled in France without he shall have firsl applied to the French government for permission to do so, and obtained an express authorization from the government to establish such domicil, and that the testator never obtained an authorization to establish his domicil in France, and never became domiciled there by the laws of that country. The chancellor, in his opinion, considered the evidence on the sub- ject of the testator's mental condition at the time of his marriage, and reached the conclusion thai the testator was nol at thai time mentally incapacitated to contract marriage or to change or establish his domi 234 HAERAL V. HAEEAL. [CHAP. VII. cil. The evidence shows that the decedent, for some time, had been addicted to intemperance, and that his physical and mental vigor had been impaired by indulgence in drink ; but it falls short of proof that, at the time of his marriage, his mental faculties had become so impaired as to incapacitate him from entering into a contract of mar- riage, or from deciding upon the place of his domicil. The answer contains no allegation of fraud or imposition upon the decedent in procuring the marriage. The case turns wholly upon the applicability of the community law to the testator's personal estate in the hands of his executors. When the testator went abroad in 1869, his property consisted of personal estate, and a house and lot in Bridgeport, Connecticut. The personal estate he left in charge of Mr. Wallis, to be invested and cared for, and it remained in charge of the latter during the lifetime of the decedent. This personal estate, amounting to about $50,000, at the testator's death came to the hands of the executors. This contro- versy relates wholly to the personal estate. 1 . . . The complainant's counsel contended that inasmuch as the marriage was celebrated in France, the wife, immediately on her consummation of the marriage, acquired a vested right in her husband's property, independent of airv question of domicil, and that her right in the per- sonal propert}' of the husband was a jus acquired by the marriage by virtue of the French law, which could not be invalidated b}' any ex- traneous circumstances. This view has had some support in the opin- ions of writers on international law, but is contrary to the course of de- cision in the courts of this country, and, I may add, to the later decisions of the courts elsewhere. The doctrine generally adopted and supported b}" reason and public policy is, that a marriage celebrated according to rites and ceremonies recognized b}- the laws of the country where the marriage takes place, is valid everywhere ; and, as a general rule (not without exceptions), by that law the capacity of the parties to contract a marriage is determined. Whart. on Confi. of Laws, §§ 161,. 162, 164; Story on Confi. of Laws, §§ 113, 113 a, 114, 123 b, 124, 124 a : Bish. on Marr. and Div. §§ 357, 359, 363, 370 ; Moore v. Hegeman, 92 N. Y. 521. But with respect to the property rights of husband or wife in the personal property of either, derived from the marriage relation, the place where the marriage was celebrated is not decisive ; these rights depend on what is known in law as the matrimonial domicil. Le Breton v. Nouchet, 3 Mart. (La.) 60, 81 ; Ford v. Ford, 2 Mart. (n. s.) 574 ; Allen v. Allen, 6 Rob. (La.) 104 ; Kneeland v. Ensley, Meigs (Tenn.) 620; Glenn v. Glenn, 47 Ala. 204; Mason v. Homer, 105 Mass. 116 ; Story on Confi. of Laws, §§ 186, 193 ; 2 Pars, on Cont. 590. Mr. Wharton sa}-s that the place of the celebration is not necessarily the place of the performance of the marriage, which, he says, the later jurists have agreed is its true legal site, and that this place of perform- ance is the matrimonial domicil to which the husband and wife propose 1 Here follows a discussion on domicil, for which see ante, Vol. I. p. 195. — Ed. SECT. V.] HARRAL V. HARRAL. 235 to repair. Whart. on Confl. of Laws, § 192. On the marriage, the legal presumption is that the wife takes the domicil of her husband, and her rights are subject to the law of his domicil ; but that presump- tion is overcome, and the legal inference is superseded when, ou the marriage, the parties adopt a place for their matrimonial domicil — in which event the matrimonial domicil will control, and will regulate the property rights of the parties in movables. The authorities are quite generally in accord in selecting the matrimo- nial domicil as the place which shall furnish the law regulating the in- terests of husband and wife in the movable property of either, which was in esse when the marriage took place. Perplexing questions sometimes arise as to what place shall be deemed the true matrimonial domicil in the sense of this rule. Mr. Justice Story supposes a case where neither of the parties has a domicil in the place where the marriage was cele- brated, and the parties were there in transitu, or during a temporary residence, or on a journey made for that sole purpose animo rever- tendi, and says that the principle maintained by foreign jurists in such cases would be that the actual or intended domicil of the parties would be deemed to be the true matrimonial domicil ; or, to express the doc- trine in a more general form, that the law of the place where, at the time of the marriage, the parties intended to fix their domicil would govern all the rights resulting from the marriage. He also supposes the case of a man domiciled in one State marrying a lady domiciled in another State, and says that foreign jurists would hold that the matri- monial domicil would be the domicil of the husband if it was the inten- tion of the parties to fix their residence there, or the domicil of the wife if it was their intention to fix their residence there, or in a differ- ent place from the domicil of either the husband or wife if they intended to establish their matrimonial domicil in some other place. He then refers to the decisions of the courts of Louisiana, adopting the same principle, and concludes that, " under these circumstances, where there is such a general consent of foreign jurists to the doctrine thus recog- nized in America, it is not, perhaps, too much to affirm that a contrary doctrine will scarcely hereafter be established ; for, in England as well as in America, in the interpretation of other contracts, the laws of the place where they are to be performed has been held to govern. Treated, therefore, as a matter of tacit matrimonial contract (if it can be so treated), there is the rule of analogy to govern it; and treated as a matter to be governed by the municipal law to which the parties were. or meant to be, subjected by their future domicil, the doctrine seems equally capable of a solid vindication." Story's Confl. of Laws. §§ mi- 199. All perplexity on this subjeel is removed where, as in this case, the place where the marriage is celebrated, the domicil of the wife, and the establishment of a home after the marriage, concur. The place of contract and the place of performance being the same, on legal anal- ogies there woidd seem to be no doubl that that place would be the matrimonial domicil, and that the incidents of the marriage would be determined by the law of that place. 236 HARRAL V. HARRAL. [CHAP. VII. Nor can that question, which has given rise to great diversity of opinion where new property has been acquired after the marriage, and in a new domicil, arise in this case, for the property to which this con- troversy relates was in esse at the time of the marriage, and the matri- monial domicil then established continued until the husband's death ; and it is universally allowed that, when a marriage takes place without settlement, the mutual rights of the husband and wife in each other's movable property are to be regulated by the law of the matrimonial domicil, so long as that remains unchanged. Westlake's Int. Law, § 366. The French law recognizes a conjugal domicil analogous to what is known in our law as a matrimonial domicil,. and is distinguished from that domicil which is required for the purpose of contracting a lawful marriage ; and the law of that country, with respect to the effect of the conjugal domicil upon the rights of husband and wife in the movable property of either spouse, is in accordance with the views above ex- pressed. George Merrell, a witness called b} r the defendants, who is not an attorney or avocat in the French courts, being a foreigner who studied law in New York City, said that a foreigner cannot acquire u domicil in France without complying with Article 13 of the Code, except it be a matrimonial domicil, which he defines to be the resi- dence necessary to confer jurisdiction on the magistrate for the celebra- tion of the marriage ; and that in the case of an American citizen establishing his residence in France, with intention of making that bis permanent home, marrying and living there, not having received the government authorization, according to the Code, his personal prop- erty would be distributed according to the American law. On the other hand, M. Goiraud, a French lawyer called by the complainant, testified that the domicil necessary for a foreigner to contract a legal marriage required only a residence, in fact, for six months, and that the domicil which was to govern the marriage relations of the parties would be the conjugal domicil, which he defined to be the domicil which had been chosen b} - the parties, either at the time of the mar- riage or after the marriage, in order to be finally settled. M. Clunet, avocat of the court of Paris, called by the complainant, testified that French jurisprudence, in order to establish the marriage relation of the parties married without a contract, takes, as a principle, their supposed intention, and finds the expression of that intention in what is called the conjugal domicil, or, in other words, the place where, after the marriage, the parties establish themselves. Both these witnesses agree that government authorization is not required for the establishment of a conjugal domicil in France, which, when the marriage is celebrated in France without a contract, will make the propert}' of a foreign-born husband subject to the community law. The decisions of the French courts sustain the opinions given by M. Goiraud and M. Clunet. In Breul's Case, Sirey (1854), 2,105, translated in 4 Phillim. Int. Law, 226, and more fully in Cole on Domi« SECT. V.] HARRAL V. HARRAL. 237 cil, 45, 47, Breul was a Hanoverian ; he married a Frenchwoman in France, and died there ; at the time of his marriage, and at his death, he was domiciled in France, but had not obtained a governmental authorization for that purpose. On appeal, the question was whether there was a community of goods between husband and wife. The court held that there was, and that foreigners were capable of entering into all contracts depending on the law of nations, and could, when they marry in France, accept tacitly the rule of community, established by law, in the same way as they might have made that rule the subject of express stipulation in a formal contract ; that, to make this princi- ple apply to foreigners, it was not enough that the marriage was cele- brated in France ; but that it was also necessar}- that the intention of the contracting parties to adopt the community should be manifested by affirmative acts ; that the establishment of a domicil in France had always been regarded as the most positive manifestation of such inten- tion ; that the domicil ought to have an importance to distinguish it from simple residence, but it was not necessary that it should have been authorized by the government under Article 13, for the reason that the object of this authorization was to confer on the foreigner all the civil rights of native-born Frenchmen, and that these rights were not necessary in a foreigner in order to enable him to enter into matri- monial conventions, which are purely of the jus gentium. In Lloyd v. Lloyd, Sirey (1849), 2, 220 ; in Cole on Domicil, 37, and translated in a note to Whicker v. Hume, 13 Beav. 401, James Lloyd, a foreigner, whose birthplace was unknown, and who was, by presump- tion and residence, an Englishman, came to France, and established himself there permanently. In 1836 he married, at Paris, a French- woman, without a marriage settlement. He had three children by the wife before marriage, and three afterwards. He continued his resi- dence, and died in Paris, leaving his wife and the six children surviv- ing him. The widow claimed, before the French court, that portion of the property which would belong to her by the French law, if she and her husband were married under the regime of the communaute des liens. Her right depended on whether, at the time of the marriage, the decedent had a legal domicil in France. He never had applied for or obtained an authorization under Article 13 of the Code. The Tribu- nal of the Seine decided against her claim, but the decree was reversed by the Court of Appeal, and the claim of the widow sustained. The court said that " it is fruitless to contend that the domicil of James Lloyd, in France, was not accompanied by the authorization of the government, required by Article 13, and therefore it cannot be taken into consideration as regulating the conjugal domicil, for it is a fixed principle of law, as well before as since the Code, that a foreigner, even when he preserves that quality, could acquire a domicil in France; that Article 13 of the Code did not, intend to change this state of things; that it is only when a foreigner wishes to possess such a domicil in France, as will confer upon him all civil rights, that the 238 HARRAL V. HARRAL. [(JHAP. VII. authorization of government is required ; that in the present case it is not a question as to a civil right, exclusively appertaining to a French citizen ; that the tacit agreement as to the community of goods, result- ing from submission to Articles 1393, 1399, 1340, and the succeeding articles, was purely derived from the law of nations." In Fraix's Case, Fraix was a Savoyard, and settled in Paris, where he married his second wife, a Frenchwoman. The question was whether he married under the French communaule des Hens. The court held that although he had not been authorized by the government to establish his domicil in France, a domicil was not necessary to make the commwnaute applicable, which is presumed to have been the intention of the parties when they fixed themselves in France. 4 Phil- lim. Int. Law, 231. In Ghisla's Case, decided in 1878, Ghisla was a Swiss by birth. He married a Frenchwoman in France, and before and after his marriage had his domicil in Marseilles, and in that place died. His widow claimed the benefit of the community law, and it was adjudged to her by the court of Aix, the ground of the decision being that, where one of the married couple is French, and the other a foreigner, they are, in the absence of a contract, governed by the law of the conjugal domicil ; that the intention of the parties is to be considered before their nation- ality, and that to the fixing of the conjugal domicil, government author- ization was not required, for whatever appertains to the marriage belongs rather to the jus gentium than to the civil law, properly speak- ing. °Jour. Int. Law, 1878, 610. In Dages v. Laborde, it was held that the legislation applicable to the civil interests of a marriage was that of the place where the married couple established their domicil immediately after the marriage, and where it appeared that it was their intention to fix the principal place of their business, and to raise their family, and that this domicil was denominated their matrimonial domU oil. Court of Pau, 1835, affirmed in the Court of Cassation, December, 1836, Journal du Palais, 1837, 1, 537. Giovanetti v. Orsini, Sirey (1855), 699, is the converse of the cases cited. In that case a Frenchman, while domiciled in Tuscany, married an Italian woman in Florence. They afterwards removed to France. On her death, the question arose in France as to the matrimonial regime governing the estate of the deceased wife. There had been an agree- ment, subsequent to marriage, with respect to property, not valid under the French law. The court held that the marriage having been contracted at Florence, and the parties having, at the epoch of their marriage, fixed their matrimonial domicil in Tuscany, the marriage was necessarily under the influence of the Roman law, which governed such matters in Tuscany, according to which, agreements subsequent to marriage were authorized and valid. Cole on Domicil, 41. Morand v. Commune de Mezere, Sirey (1873), pt. II., 148, much relied on by the defendants, is not in point. The parties were married in Sardinia, and then removed to France. The husband settled in SECT. V.] BOND 17. GUMMINGS. 239 Paris, and had his principal establishment there, but did not obtain authorization from the government. His daughter was born in France. He died in 1855, and his widow in 1867, making the commune her residuary legatee. The court held that Morand was a foreigner, and so were his wife and daughter, and therefore the laws of France did not govern the succession. The effect of a French marriage, followed by a conjugal doraicil in France, was in no wise involved. I think it is clearly shown, not only by the testimony of the French lawyers, who were witnesses in this case, but also by the French deci- sions, that it is the law of that countr\- that the marriage of a foreigner in France, without any contract, followed by a conjugal domicil in France, will subject the property of the married persons to the com- munity law, and that a government authorization under Article 13 of the Code is not necessary to the establishment of such a domicil. The decree of the chancellor should be affirmed. Decree unanimously affirmed. 1 BOND v. CUMMINGS. Supreme Judicial Court of Maine. 1879. [Reported 70 Maine, 125.] Libbey, J. This is trespass against the defendant, as sheriff of Aroostook County, for a mare. The defendant justifies the taking by his deputy by virtue of an attachment of the mare as the property of John Bond, the plaintiff's husband, on a writ in favor of R. S. Starrett against him. The plaintiff claims title to the mare by virtue of a purchase from her husband while living with him, and having no separate support, in the province of New Brunswick, from which province they moved into this State about the time of the attachment. No purchase is claimed to have been made in this State. By the law of New Brunswick a married woman, living with her husband and having no separate maintenance, cannot acquire title to property by purchase from him. The validity of the contract under which the plaintiff claims title must be determined by the law of that province. "Matters bearing upon the execution, the interpretation, and the 1 Ace. Mason v. Fuller, 36 Conn. 160; Davenport v. Carnes, 70 III. 465 ; Brieo v. Marchildon, Rep. Jud. Quebec, 15 C. S. 318. This is true even though the marriage iru abroad at the woman's domicil, and the wife always remains there. Succession "f McKenna, 28 La. Ann. **«><> ; Breton '■. Miles, 8 Paige, 261 ; 18 Cluuet, 549 (French Cass, 9 March, '91) ; 19 Clunet, 1066 (Geneva, 18 March, '82).— Ev. 240 FRIERSON V. WILLIAMS. [CHAP. VII. validity of a contract are determined by the law of the place where the contract is made." Scudder v. Union National Bank, 91 U. S. 406. Story, Conf. of Law, §§ 242, 243. Bringing the mare into this State gave the plaintiff no title which she did not acquire by virtue of the purchase from her husband, by the law of New Brunswick ; and the mare was legally attachable here as the property of the plaintiff's husband. Plaintiff nonsuit. 1 FRIERSON v. WILLIAMS. Supreme Court, Mississippi. 1879. [Reported 57 Mississippi, 451.] George, C. J. 2 The plaintiff in error filed his bill in the Chancery Court of Coahoma County against John Williams and his wife for the purpose of collecting out of the separate estate of Mrs. Williams a note for six thousand and fifty dollars, made by Williams and wife, in February, 1873, payable to the order of Williams, the husband, and by him indorsed to the plaintiff in error for money then advanced by the latter to said Williams. The note was made at New Orleans, in the State of Louisiana, where Williams and his wife reside. The property sought to be charged with the debt is land situated in Coa- homa County, and is the separate estate of Mrs. Williams, under a devise made to her by her sister, Mrs. McGuire, who died in 1863. By her will she provided as follows: "My whole estate, real and personal, shall go to my sisters, Ellen Mayes, wife of R. B. Mayes, aud Louisa Williams, the wife of John Williams, for and during their natural lives ; and this bequest is to their sole and separate use in which their husbands respectively shall have no right or interest." . . . It is next insisted that b} - the law of Louisiana the promissory note of the wife, made as surety for her husband, is void for want of the capacity of the wife to enter into such a contract, and that, being void by the lex loci contractus, it is void everywhere. This position is true, 1 So generally, when personal property falling to the wife becomes the husband'? by the law of their domicil, a subsequent change of domicil will not alter the existing rights of the husband. Cahalan v. Monroe, 70 Ala. 271 ; Lichtenberger v. Graham, 50 Ind. 288; Lyon v. Knott, 26 Miss. 548; Davis v. Zimmerman, 67 Pa. 70. And sc as to the wife's rights in her husband's chattels ; Kraemei o. Kraemer, 52 Cal. 302. Conversely, where personal property falling to a wife becomes her separate estate, removal into another State does not affect her rights. Hinman v. Parkis, 33 Conn. 188; Townes v. Durbin, 3 Met. (Ky.) 352 ; Reid v. Gray, 37 Pa. 508. When a wife becomes trustee of personal property in accordance with the law of the domicil, she continues to hold the position after removal. Schluter v. Bowery Sav. Bank, 117 N. Y. 125, 22 N. E. 572. — Ed. 2 Part of the opinion only is given. — Ed. SECT. V.] FRIERSON V. WILLIAMS. 241 if the giving of the note has no other effect than what it purports to have on its face, viz., a personal obligation of the wife. But it is charged in the bill and admitted by the demurrer, that at the time this note was made in Louisiana the wife had a separate estate in realty, situated in this State, and that she contracted with reference to this separate estate, and intended to charge it by the promissory note in controversy. Whether this purpose can be carried out with reference to realty here, notwithstanding the fact that the note is void by the law of Louisiana, is the question presented for our consideration. The note, if made here, would be equally void by our laws to bind the wife personally; yet, notwithstanding this, it would be held, if made with the intent and purpose alleged in the bill, to be a valid charge against her separate estate situated here. It is generally true that the capacity of a married woman to make a contract will be determined by the law of her doinicil : but this is not the rule when her contract relates to her estate in realty, situated in another jurisdiction. Judge Story says : " The general principle of the common law is that the laws of the place where such [immovable] property is situate exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should ac- company them. The title, therefore, to real property can be acquired, passed, and lost only according to the lex rei sitm." Story, Conll. Laws, § 424. And quoting from Sir William Grant : " The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated ; " he says : tc The same rule would also seem equally to apply to express liens and to implied liens upon im- movable estate." Mr. Burge, as quoted by Judge Story, in a note to section 445 of the same work, says : ' k The power to alienate immovable property by contract was a quality impressed on the property ; that the law from which it was derived, or by which it is regulated, was a real law; and that the existence of this power and the validity of its exer- cise must be decided by the law of the country in which the property was situated." And it is said by a learned author: " No sovereignty can permit the intrusion on its soil of a foreign law. Such a law may be accepted by comity in eases in which a contested issue, the law applicable to which is foreign, comes up for determination in a home court. But the imposition of any other law than the lex rei sitce as to property, would be to give foreign subjects and foreign laws an absolute control, unchecked by any discretion of the home courts, over a subject-matter essential not merely to the independence, but the vitality of the State. . . . The mischief is cured by the adop- tion of the rule lex rei sitce regit; whoever may be the owner, or wherever the contract was made, the law of the land reigns. N<> other law, either as to the transfer or control of the property, is to intrude." Wharton, Conll. Laws. §§ -J7.S. 280. These rules applj to marital rights in realty. Judge Storj", after speaking of the rights of husband and wife as to personal property situated bej'ond the mat- VOL. II. — 16 242 fpjekson v. williams. [chap, vil rimonial domicil, says: "But real or immovable property ought to be left to be adjudged by the lex rei sitae as not within the reach of any extraterritorial law;" and in Vertner v. Humphreys, 14 S. & M. 130, 143, this court said that, "As to immovable propertv, the law of the place where it is situated fixes the rights of husband and wife in it." The application of these principles will furnish a safe solution of the question under consideration. The capacity of Mrs. Williams to take this property, and her rights and powers over it, are derived from and regulated by the law of this State. Her power of disposition and deal- ing with it are, by our laws, impressed on the property itself. As to none of these things has the law of Louisana the slightest influence. If she had made a contract expressly disposing of this property, it will not be denied that, though void by the laws of Louisiana, either for her want of capacity to act, or the want of the observances of the forms and solemnities prescribed by those laws, yet, if valid by the law of this State, it would have been good. The contract here is not strictly of that character, yet the making of it is the exercise of the power of the wife to dispose of her estate; for whenever that power is denied, the power to charge it with her debts is denied also, and the charge can only be made effectual by the actual or threatened alienation of the estate, under a decree of the Chancery Court. The charging of her separate estate for the payment of money does not pass any actual interest in the land, but it is the first and essential step for a judicial disposition of the estate to satisfy the charge, and the exercise of a power of administration and control over it, which, as we have seen, is governed solely by the lex rei sitae. To show that this is its true na- ture, we have onby to suppose that, by the law of Louisiana, the note was a charge on her realty situated there, and was not by our law a charge on the realt}' situated here. In such a case, it would be evident that an attempt to enforce it here against her real estate could not succeed. If success could attend such an effort, then the several rights and powers of husband and wife, as to realty, would not be fixed and governed by the laws of the situs ; and the act of a wife, done in a foreign State, would have the effect of disposing of her realty here, contrary to our laws. But there is no real conflict between the laws of Louisiana and Mis- sissippi in reference to the contract. By both laws the note is void for what it purports to be on its face, — a personal obligation of the wife : and it is void for the same reason in both, viz., the personal incapacity of the wife. The difference between the two laws is as to the effect on the real property of the wife in the respective jurisdictions of the two States, and as to which, as we have above seen, the law of the State in which the realty is situated is the exclusive test. If the note had not been void b}' our laws, as the personal obligation of the wife, we should nevertheless, out of comity to a sister State, adjudge it void to that extent, if attempted to be enforced here : but the principle of SECT. V.] BONATI V. WELSCH. 243 comity does not require a State to regard the laws of any other State, so far as they may affect contracts in relation to real estate situated in the former State. Decree reversed, demurrer overruled, and cause remanded} BONATI v. WELSCH. Court of Appeals, New York. 1861. [Reported 24 New York, 157.] Action by a widow residing in France, against the executors and legatees of her deceased husband, to recover the value of certain real estate inherited by her, which was sold with her assent, and the pro- ceeds received by her husband while she was living and domiciled with him in France. 2 Davies, J. By section 1387 of the Code Napoleon, the law in ref- erence to the conjugal relation is prescribed in default of special agreement ; and by section 1393, in default of special stipulations, the law of community prevails. By sections 1401 and 1402, the com- munity consists of such movable property as falls to either party dur- ing the marriage by any title whatever, and all immovables acquired during marriage. By section 1404, the immovables which fall to them during marriage by title of succession do not enter into the community. Section 1433 provides that if an immovable belonging to one party be sold and the price paid into the community, there is ground for the deduction of the price so paid in from the community for the benefit of the party who was proprietor of the immovable sold. Section 143G declares that recompense for the price of an immovable belonging to the wife is claimable by her out of the property of the husband, in case of the insufficiency of the goods of the community. By section 1470, on the dissolution of the community, from the mass, each one deducts the price of immovables which have been alienated during the community, and for which compensation lias not been made. By section 1471, the shares of the wife take precedence of the husband, and by section 1472 the wife is entitled, in case of insufficiency in the community, to exercise her claims out of the property of the husband. Section 1441 declares that the death of either of the panics works a dissolution of the community, and by section I 153 after the dissolution the wife has the power to accept or renounce it. By section 1493, the 1 Ace. Wick v. Dawson, 42 YV. Va. 43,24 S. E. 587. And Bee W I v. Wheeler, 111 N. C. 231. So generally, the effect of a marriage contract executed abroad upon land is deter- mined by the It t rei sitae. Heine v. Mechanics' & Traders' Insurance <'■»., 45 La. Ann. 770, 13 So. l ; Richardson v. De Giverville, 107 Mo. 422, 17 S. W. 974. Ed. 2 The statement of fact and the dissenting opinion sire omitted.— Ed, 244 BONATI V. WELSCH. [CHAP. VII. wife who renounces has a right to receive the price of the immovables alienated, for which compensation has not been made to her. And by section 1495, she ma}' exercise all actions and previous demands as well against the goods of the community as against the personal goods of her husband. From this examination of the French law it follows that the property of this plaintiff which came to her during marriage, by succession from her mother, being immovable, still belongs to her ; that she could alienate it, as she did, with her husband's consent, that he had the management of it, and had a right to retain the avails of the sale, and keep them during the existence of the community, and had a right to the enjo}'ment of its emoluments ; and that on his death, he having received the price of its alienation, she had a valid claim for that price, first to be paid out of the property of the community, and that failing, out of the property of the husband, and that her claim was entitled to priority of payment. Such would have been the rights of the parties, if both had con- tinued to reside in France. Are these rights changed by the circumstance of the husband coming to this country and dj'ing here ? That the price of the wife's immovables thus sold and realized by the husband, constituted a valid debt against him by the laws of France, where this marriage took place, admits of no doubt. Is the debt dis- charged by the husband's coming to this country? The rule laid down by Parsons on Contracts, 2 Pars. 110, would seem to answer this suggestion. He says : " It is the general rule, both in England and in this country, that the incidents of marriage and contracts in relation to marriage, as settlement of property and the like, are to be construed by the law of the place where these were made ; for any different construction cannot be supposed to carry into effect the intentions and agreements of the parties, or to deal with them justly." Many cases are cited to sustain the text, and among others, those in our own State, of Decouche v. Savetier, 3 John. Ch. 190 ; Crosby v. Berger, 3 Ed. Ch. 538, and De Barante v. Gott, 6 Barb. 492. These cases hold that where there is an express contract between the parties, that contract will be enforced, and the rights acquired under it main- tained and upheld, though there be a change of domicil. Rights de- pendent on the nuptial contract are governed b\* the lex loci contractus. There would be no difficulty in this case, therefore, in sustaining the rights and claims of the plaintiff, if the provisions of the Code Na- poleon had been embraced in an express contract. Some foreign jurists hold that the law of matrimonial domicil attaches all the rights and incidents of marriage to it proprio vigore, and independ- ent of any supposed consent of the parties. 1 Boullenois Obser., 29, pp. 741, 750, 757, 758 ; Huberus, Lib. 1, tit. 3, De Confl. Leg. § 9. SECT. V.] BON ATI V. WELSCH. 245 Others hold that there is in such cases an implied consent of the parties to adopt the law of the matrimonial domiuil by way of tacit contract, and then the same rule applies as in cases of express nuptial contracts. Dumoulin was the author, or at least the most distin- guished advocate, of this doctrine. Story on Conflict of Laws, § 14 7. This rule has also been adopted by Bouhier, Hertius, Pothier, Merlin, and other distinguished jurists. Id. § 148. Story, after reviewing the opinions of jurists and the decisions having a bearing upon the question, sums up the whole by saying, in section 159, that perhaps the most simple and satisfactory exposition of the subject, or at least that which best harmonizes with the analogies of the common law, is, that in the case of a marriage, where there is no special nuptial contract, and there has been no change of domicil, the law of the place of celebration of the marriage ought to govern the rights of the parties in respect to all personal or movable property, whenever acquired or wherever situate ; but that real or immovable property ought to be left to be judged by the lex ret sites, as not within the reach of any extraterritorial law. When there is any special nuptial contract between the parties, that will furnish a rule for the case, and, as a matter of contract, ought to be carried into effect everywhere, under the general limitations belonging to all classes of contracts. In this case a new element is introduced by the removal of the hus- band from France, and consequently a change of his domicil. In section 161, Story quotes from Bouhier, who lays down the rule in general terms that in relation to the beneficial and pecuniarv rights (les droits utiles et pecuniaires) of the wife, which result from the matrimonial contract, either express or tacit, the husband has no power by a change of domicil to alter or change them, according to the rule nemo potest mutare consilium suum in alterius injuriam, and he insists that this is the opinion of jurists generally. To the same effect that the change of domicil by the husband shall not deprive the wife of any separate interests or separate rights she may have, is the case of Harteau v. Harteau, 14 Pick. 181. And this rule is a reasonable and proper one. As a general rule, the domicil of the wife follows that of the husband, and there is much force in the argument, that in the absence of an express agreement defining the matrimonial rights, the law of the contemplated or any future domicil should govern. But in the case now under considera- tion, the domicil of the wife has not been changed, and the rights she acquired by the tacit contract made in the matrimonial domicil are not, we think, lost or impaired by Hie change of the domicil of the husband. Those rights did not mature until the death of the husband. They were postponed till the happening of this event, and then by the law of the matrimonial domicil. by virtue of the tacit contracl made between the parties, the right, of the wife to a return of all her indi- vidual property received by the husband, revives and can be enforced. 246 LA SELLE V. WOOLEKY. [OIIAP. VII. We see no reasons of public policy why rights thus secured should not be recognized or enforced, equally as those arising from an express contract. The judgment must be affirmed, with costs. 1 Comstock, C. J., Denio, Hoyt, and James, JJ., concurred. Mason, J., dissented. LA SELLE v. WOOLERY. Supreme Court of Washington. 1895, 1896. [Reported 11 Washington, 337 ; 14 Washington, 70.] Hoyt, C. J. 2 Appellant, William F. Collins, in a suit brought in Kino- County against the respondent, William La Selle, duly recovered judgment. To this action and judgment the respondent, Marian E. La Selle, wife of said William La Selle, was not a party. Execution issued on said judgment, which was placed in the hands of J. II. Woolery, sheriff of* King County, the other appellant. He made a levy upon a piece of real estate situated in King County, of which the paper title was in the name of* said Marian E. La Selle. This suit was then brought by the respondents, and thereby they sought to enjoin the sale of the property levied upon, and to have it decreed that such property was not subject to the lien of the judgment. It was conceded that the property, though standing in the name of the wife, Marian E. La Selle, was the community property of herself and her husband, William La Selle. It was, therefore, under the rule established by numerous decisions of this court, subject to the lien of the judgment against the husband alone if the debt upon which such judgment was rendered was that of the community. It is equally well established by the adjudications of this court that such property was not subject to the lien of such judgment if the debt for which it was rendered was the separate debt of the husband. It must follow that the nature of the debt which was the foundation of the judgment is the material question to be determined upon this appeal. If it was that of the community, the sheriff should have been allowed to proceed to satisfy the judgment by a sale of the property. If it was the debt of the husband alone, the appellants were rightfully restrained from pro- ceeding further against the property in question. The foundation of this judgment was one against the husband alone, made and entered in the State of Wisconsin, and the foundation of that one was a liability incurred by the husband to the appellant Collins in the prosecution of his business as a contractor and builder and proprietor of a sash and door factory, and was for materials sold to him to be used in the con- i Arc. Kendall v. Coons, 1 Bush. 530; Columbia Bank v. Walker, 14 Lea, 299. — En. 2 Part of the opinion is omitted. — En. SECT. V.] LA SELLE V. WOOLERY. 247 struction of houses and to supply his factory. At the time this liability was incurred, and the judgment in Wisconsin rendered, the respond- ents were living together as husbaud and wife in the State of Wisconsin. Afterward they removed from said State, and, from a time preceding the date of the judgment rendered in King County, had been living together as husband and wife in this State. . . . The substantial question presented by the facts is as to the status of the debt which was the foundation of the judgment in Wisconsin in reference to the property of the husband or husband and wife situated in that State. It appears from the statutes set out in the answer that in that State there is no such thing as community property as understood here, nor is there any such thing as separate property of the husband as defined by our laws. The wife alone could own separate property, and the provisions in relation to its acquisition were substantially the same as in this State. All other property was that of the husband, whether it was acquired in such a manner as to make it under our laws his separate property or that of the community. And all of his property under the laws of that State could be subjected to the payment of debts incurred by him alone. It will be seen from these provisions that a debt incurred by the husband could there be enforced against all of the property acquired by the husband and wife either before or after marriage excepting such as under the laws of that State would be the separate property of the wife. This is substantially the result of the laws of this State as interpreted by former decisions of this court. In our opinion the comity which one State owes to another goes to the substance rather than the form of tilings. If a certain right is given in one State as to property of a certain nature, comity would require that those rights should be enforced in another State as to property of the same nature though it might be called by a different name. In the State of Wisconsin property which was acquired by the joint labors of the husband and wife, though called the property of the husband, was subject to the payment of debts incurred by the husband in the prosecution of business for the support of the family. Property acquired in the same manner in this State belongs to the community, but is subject to a liability incurred by the husband alone in the prose- cution of business for the same object. Hence, under the rule above suggested, comity requires that a debt which under the laws of that State could be enforced against property which from the nature of ils acquisition would be that of the community in this state, should be here enforced against property belonging to the community. There is nothing in the policy of our Legislation which will prevent the application of the rule above stated to the facts of this case. < m the contrary, the general policy of this State upon the question of the liability of property of the community and of the respective spouses for debts incurred by the husband alone in the prosecution of any business is in substantially the same line as that, of the State of Wisconsin. But whether it, is or not, so long as the rights of the parties are adjudi- 248 LA SELLE V. WOOLERY. [CHAP. VII. cated under the laws of this State, its citizens have no ground of com- plaint, whatever ma} - be the result as to those of other States. And since what we have said has been founded upon our statute, and the rights adjudicated thereunder have been in the light of the facts shown by the record, the respondents cannot complain. The judgment will be reversed, and the cause remanded with in- structions to overrule the demurrer to the affirmative defences pleaded in the amended answer. Rehearing granted. Gordon, J. A majority of the court are of the opinion that a wrong conclusion was reached at the former hearing. The case is fulhy stated in the former opinion, in the course of which opinion the court said: " If a certain right is given in one State as to property of a certain nature, comity would require that those rights should be enforced in another State as to property of the same nature." Upon further consideration, we think that this is extending the doctrine of comit}' too far. While comity might require that rights so acquired, against personal property merely, should be enforced in this State as against such property (Harrison v. Sterry, 5 Cranch, 289 ; Wharton, Conflict of Laws, § 324), we do not think it ought to be extended to property subsequently acquired in this State, although of the "same nature," and this principle is wholly inapplicable to real property. The law of the place where the real property is situated must be held to control its disposition, whether by voluntary or forced sale. McCormick v. Sullivant, 10 Wheat. 192. Upon this subject no less a writer than Story has said: "All the authorities in both countries [England and America], so far as they go, recognize the principle in its fullest import, that real estate, or im- movable property, is exclusively subject to the laws of the government within whose territory it is situate." Story, Conflict of Laws, § 428. "Any title or interest in land or in other real estate can only be acquired or lost agreeably to the law of the place where the same is situate." Id. § 365. The character of the property, as regards the question of its being the separate property of either of the spouses, or the property of the community consisting of both spouses or otherwise, is fixed by the law of the State where such property, if real property, is situated. So, too, the character of the debt is determined by the law of the place where it arose. If by the law of Wisconsin it was the sole individual debt of the husband, it retained that character here. Its status was fixed by the law of the place of its creation. The debt which the appellants are here seeking to enforce, being by the law of Wisconsin where it arose merely the separate individual debt of the husband, enforceable only against his separate individual property, it follows that the judgment rendered upon that debt cannot be satisfied out of SECT. V.] LA SELLE V. WOOLERY. 249 the real property of the community acquired in this State long after the debUarose and judgment was rendered upon it. The doctrine of the common law is that: " In regard to the merits and rights involved in actions, the law of the place where they origi- nated is to govern. . . . But the form of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicil of the par- ties, the origin of the right, or the country of the act."' Story, Conflict of Laws (8th ed.), § 558. The settled rule is that the law of the place where the contract was made must govern in determining the character, construction, and valid- itv of such contract ; while the law of the place where suit is instituted upon the contract governs as to "the nature, extent, and form of the remedy, . . . whether arrest of the person or attachment of the prop- erty may be allowed ; whether a debt is or is not discharged by oper- ation of law, as insolvent laws, or barred by statutes of limitation ; rights of set-off ; the admissibility and effect of evidence ; the modes of proceeding and the forms of judgment and execution." 2 Abbott's Law Dictionaiy, p. 36. In the case of Rlanchard v. Russell, 13 Mass. 1 (7 Am. Dec. 106), the Supreme Court of Massachusetts, speaking by Chief Justice Parker, say : — "But the courtesy, comity, or mutual convenience of nations, among which commerce has introduced so great an intercourse, has sanctioned the admission and operation of foreign laws relative to contracts ; so that is now a principle generally received, that contracts are to be con- strued and interpreted according to the laws of the State in which they are made, unless from their tenor it is perceived that they were entered into with a view to the laws of some other State. . . . The rule does not apply, however, to the process by which a creditor shall attempt to enforce his demand in the courts of a State other than that in which the contract was made. For the remedy must be pursuant to the laws of the State where it is sought; otherwise great irregularity and con- fusion would be introduced into the form of judicial proceedings." The rule has long been established in this court that the community real property is not liable for the separate or individual debt of the husband. Brotton v. Langert, 1 Wash. 7.". (23 Pac. 684) i Stockand v. Bartlett, 4 Wash. 730 (31 Pac. 24). And it would be productive merely of confusion and disorder to limit the application of this rule to those debts only which are contracted within this State. One result of such, limitation would be that the court would be required in every case to resort to the law of the State where du- de bt arose in order to determine what property in that State would be liable for such debt, and then to permit such judgment creditor to have his judgment satisfied out of like property of the judgmenl del. tor in this State, without regard to our own law upon the subject. And it would follow logically from such a rule that property of a judgment 250 ANONYMOUS. [CHAP. VII. debtor which is b} r our law exempt from levy and sale on execution could be subjected to the payment of a judgment for a debt incurred in some sister State where the exemption laws were different from our own. All these questions relate to the character and extent of the remedy, and not to the construction or validity of the contract, and the} - are governed and controlled by the lex fori, and not b}' the lex loci contractus • and to avoid interminable confusion the distinction must be observed. For these reasons the order and judgment of the Superior Court will be affirmed. Scott, Dunbar, and Anders, JJ., concur. Hott, C. J. (dissenting). The results which will flow from the rule announced in the foregoing opinion are such as to satisfy me that it cannot be the one required by comity. A husband residing in a sister State, possessed of ever so much property which, though the title is vested in him, is held for the benefit of himself and wife, and would from the manner of its acquisition be here held to be communit} - property, and was there subject to debts for the benefit of the family, which would here be held to be community debts, can escape the payment of all the debts which may have been contracted on the faith of the property which he owned by converting such property into cash and removing to this State and investing it in real estate. That the laws of one State should be so construed as to allow a debtor in another, possessed of abundant means with which to pa}- all of his creditors, to evade the paj'inent of just debts in this way, does not correspond with my ideas of comity. In my opinion the conclusion reached upon the former hearing was the correct one and should be adhered to. ANONYMOUS. Court of Appeal, Wiesbadex. 1841. [Reported 1 Seuffert's Archiv, 57.] The Court, The opinion adopted in the lower court, that the established rights of inheritance of the spouses are to be determined not by the law of their domicil at the time of the ceremony of marriage, but by the law of their domicil at the time of the death of the husband, is not in accordance with the principles hitherto established in practice ; and furthermore the established doctrine rather holds that the division of property and rights of inheritance of the spouses, since the choice of domicil depends entirely on the husband, and since the rights founded upon the tacit agi-eement connected with entrance into the marriage can- not be annulled or limited by the one-sided act of one of the spouses, particularly by change of domicil, should be regulated only by the law of SECT. V.] SAMUEL V. ARROUARD. 251 the dornicil at the time of the marriage celebration. Juristische Zeitung for Hanover, 1843, Part II. p. 72. So decided by the Court of Appeal, Munich, Nov. 3, 1847 ; Blatter fur Rechtsanwendung, Vol. II. p. 92. It is of no importance that part of the immovable estate is in a coun- try or district by the law of which the rights of the surviving spouse with respect to the children is settled otherwise. The effect of the above rule extends to immovables situated abroad. This is subject to an ex- ception, however, in a case where at the place where they are situated definite prescriptions are established with reference to the inheritance : that it shall pass to absolutely no other heir than the one therein appointed, and an alteration of this provision by consensual agreement is forbidden. SAMUEL v. ARROUARD. Civil Tribunal of Versailles. 1893. [Reported 21 Clunet, 544.] The Tribunal. 1 The documents produced, which are not disputed, prove that Dame Girard-Kiener and her husband were of Swiss nation- ality at the time of her decease at Chalon, Nov. 15, 1874. They were married at Lausanne on April 16, 1834, without any preceding marriage contract ; and consequently, by the terms of the legislation of the Can- ton of Vaud (Art. 1085), the matrimonial regime to which they were subject was without community of goods. After having lived for some time at Lausanne the Girard-Kieners went to live at Chalon in the year 1848, and Dame Girard died there on Nov. 15, 1874. At no period of their common life did either of the spouses show an intention of chang- ing nationality. No matrimonial capital was furnished by either of them, and in the course of the marriage neither of them received property by inheritance or by gift. Under these circumstances, and in conformity with Art. 1395 of the Civil Code and Art. 1046 of the Code of Vaud (which both provide that a matrimonial regime once adopted shall not change), the plaintiff claims that the regulation of the succession of Dame Girard and of their common property is governed not by the provisions of the French Civil Code, but by those of the laws of Vaud, at least such as expressly provide for the case. It is quite evident that the regime without community of goods, as it is practised in the Canton of Vaud, is in no way incompatible with the provisions of the French Law, which equally permits the regime with- out community of goods, or that of separation of goods. Consequently the administration and distribution of the common property of the Girard-Kieners, which took place on May 18, 1875. under the direction of Deguingaud, Notary at Chalon, between Girard and his two children, 1 Part of the opinion ia omitted. — Ed. 252 SAMUEL V. ARROUAED. [CHAP. VII. ma}' justly be attacked by Girard, since they were erroneously curried out upon the basis of the French legal community, when they should have been regulated by the law of Vaud. . . . The defendants claim that in any case the immovable property sit- uated at Chalon, the title of which is in the name of Girard, ought in the settlement of the marital property, in conformity with Art. 3, § 2, of the Civil Code, to be governed by the French law rather than by foreign legislation, and, consequently, to be divided upon the basis of the legal community. But since it has been decided by an unbroken line of cases that agreements which have nothing contrary to French law, to public order, and to good morals, should be executed with re- gard to movables and immovables alike, and since the provisions of a foreign law excluding from matrimonial community immovable property acquired by the spouses during the marriage is in no way opposed to the general provisions of the French law, which permits the regime without community of goods, no distinction can be made by reason of the nature of the property acquired by the spouses during their marriage. . . . University of California Library Los Angeles This book is DUE on the last date stamped below. MAY WW LAW LIBRARY RECEIVED JUN 3 1997 315 ULbUUIHtl AA 000 594 043 2 > 4