\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<S, 471.) The
liability of a person for his acts depends, in general, upon the laws
of the place where the acts were committed, and although a civil right
of action acquired, or liability incurred, in one State or country for a
personal injury ma}' be enforced in another to which the parties may
remove or where they be found, yet the right or liability must exist
under the laws of the place where the act was done. Actions for
injuries to the person committed abroad are sustained without proof
in the first instance of the lex loci, upon the* presumption that the right
to compensation for such injuries is recognized by the laws of all
countries. But this presumption cannot apply where the wrong com-
plained of is not one of those thus universally recognized as a ground
of action, but is one for which redress is given only by statute.
Keeping these principles in view it is clear that in order to maintain
this action it is necessary to establish that the statute law in question
was operative on board of the vessel upon which the injury was com-
mitted. In all the cases which have been decided, the place of the
injury was actually within the limits of a foreign territory, subject to
its own laws, and where there could be no claim that the laws of this
State or country were operative. In the present case the locus In quo
was not within the actual territorial limits of any State or nation, nor
was it subject to the laws of any government,, unless the rule which
exists from necessity is applied, that, every vessel on the high sea^ i>
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 <fc NORTHWESTERN RAILWAY CO. 97
commercial world. Non erit alia lex Roma?, alia Athenis, alia nunc,
alia posthac, sed et apud omnes geutes, et omni tempore, una eadem-
que lex obtenebit.
It becomes necessary for us, therefore, upon the present occasion,
to express our own opinion of the true result of the commercial law
upon the question now before us. And we have no hesitation in sav-
ing, that a pre-existing debt does constitute a valuable consideration in
the sense of the general rule already stated, as applicable to negotiable
instruments. . . .
We are all, therefore, of opinion, that the question on this point,
propounded by the Circuit Court for our consideration, ought to be
answered in the negative ; aud we shall accordingly direct it so to be
certified to the Circuit Court.
MURRAY v. CHICAGO & NORTHWESTERN RAILWAY CO.
Circuit Court ok thk United States, N. Dist. Iowa. 1894.
[Reported 62 Federal Reporter, 24.]
Shiras, J. In the amended petition filed in this cause it is averred
that during the years 1875 to 1887, inclusive, the plaintiff was engaged
at Belle Plaine, Iowa, in the business of buying and shipping to
Chicago grain, cattle, and hogs, the same being shipped in car-load
lots over the line of railway owned and operated by the defendant
company; that, at the several times when the shipments were made,
the defendant company had posted at its stations, including that at
Belle Plaine, printed lists containing the tariff rates charged by the
company for the transportation of freight over its line ; that, when
plaintiff shipped his stock, he applied to the defendant and its station
agent at Belle Plaine for the lowest freight rates charged, and was
answered by the defendant and its station agent that the posted rates
were the lowest and only rates charged by the company, no rebates
or concessions in any form being made therefrom to any one ; that
thereupon the plaintiff shipped his stock, and paid the posted rates
therefor; that in fact such representations were false, and were made
to mislead the plaintiff ; that in fact, as the defendant and its agents
well knew, rebates and concessions were then being made to other
parties who were competitors in business of the plaintiff, to the great
injury of plaintiff; that the fact that these rebates were allowed to the
competitors of plaintiff was kept concealed by the defendant, and was
not discovered by the plaintiff until within eighteen months previous to
the commencement of this action ; that upon shipments of grain made
from points west of Belle Plaine to Chicago the defendant charged the
shippers thereof some $15 per ear less than it was then charging the
7
98 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I.
plaintiff for shipping the same kind of grain from Belle Plaine to
Chicago, thus discriminating against the plaintiff, and compelling him
to pa}' an excessive and unreasonable rate. To recover the damages
claimed to have been thus caused him, the plaintiff brought this action
in the Superior Court of the city of Cedar Rapids, Iowa, whence it was
removed to this court upon the application of the defendant company.
On part of the defendant, a motion for a more specific statement has
been filed, followed by a demurrer, and both have been submitted to
the court.
The principal point made in the demurrer is that the petition on its
face shows that the shipments made from Belle Plaine, Iowa, to
Chicago, 111., were in the nature of interstate commerce, the regulation
of which is reserved to Congress, exclusively, by sect. 8, art. 1, of
the Constitution of the United States, and that, at the dates of the
several shipments in the petition described, there was no act of Congress
or other law regulating commerce between the several States. If I
understand correctly the position of the defendant company, it is that,
as this action was commenced in the State court, this court, upon
removal, succeeds only to the jurisdiction which the State court might
have exercised rightfully in case no removal had been had ; that in the
State court the action could not be maintained for two reasons : First,
that as sect. 8, art. 1, of the Constitution of the United States con-
fers the right to regulate interstate commerce exclusively upon Congress,
thereby depriving the States of the power to legislate touching the same,
it follows that State courts are deprived of all jurisdiction over cases
growing out of interstate commerce ; and, second, that there is no
common law of the United States ; that the common law of England
has become the common law of the several States, in such sense that
each State has its own common law ; and that the common law of the
State of Iowa cannot be applied to interstate commerce, in view of the
provisions, already cited, of the Constitution of the United States.
Dealing with these propositions in the reverse order of their state-
ment, is it true that the principles of the common law are not in force
in the United States with respect to such subjects as are placed within
the exclusive control of Congress? It will not be questioned that,
before the Revolution, the common law was in force, so far as appli-
cable, in the several colonies then existing. Thus, in U. S. v. Reid,
12 How. 361, 363, it is said: "The colonists who established the
English colonies in this country- undoubtedly brought with them the
common and statute laws of England, as they stood at the time of their
emigration, so far as they were applicable to the situation and local
circumstances of the colon}."
When the Constitution of the United States was adopted, it was based
upon the general principles of the common law, and its correct inter-
pretation requires that the several provisions thereof shall be read in
the light of these general principles. The final disruption of all politi-
cal ties between the colonies and the mother country did not terminate
SECT. III. J MlRIiAY V. CHICAGO & NOKTHWESTERN RAILWAY CO. 99
the existence of the common law in the colonies. It caine originally
into the several colonies, not by force of legislative enactments to that
effect by the Parliament of Great Britain, and the effect of which might
be held to have terminated when the colonies became independent, but,
as is said by Mr. .Justice Story, speaking for the Supreme Court in Van
Ness v. Pacard, 2 Pet. 137, 144: '* Our ancestors brought with them
its general principles, and claimed it as their birthright ; but they
brought with them and adopted only that portion which was applica-
ble to their situation."
In Cooley, Const. Lira. 31, it is said: "From the first the colo-
nists in America claimed the benefit and protection of the common
law. In some particulars, however, the common law, as then exist-
ing in England, was not suited to their condition and circumstances
in the new country, and those particulars they omitted as it was
put in practice by them. They also claimed the benefit of such
statutes as, from time to time, had been enacted in modification
of this bod} - of rules ; and, when the difficulties with the home gov-
ernment sprung up, it was a source of immense moral power to the
colonists that they were able to show that the rights they claimed
were conferred by the common law, and that the King and Parliament
were seeking to deprive them of the common birthright of English-
men. . . . While colonization continued, — that is to say, until the
war of the Revolution actually commenced, — these decisions were
authority in the colonies, and the changes made in the common law up
to the same period were operative in America also, if suited to the
condition of things here. The opening of the war of the Revolution
is the point of time at which the continuous stream of the common law
became divided, and that portion which had been adopted in America
flowed on by itself, no longer subject to changes from across the ocean,
but liable still to be gradually modified through changes in the modes
of thought and of business among the people, as well as through
statutory enactments. The colonies also had legislatures of their own,
by which laws had been passed which were in force at the time of the
separation, and which remained unaffected thereby. When, therefore,
they emerged from the colonial condition into that of independence,
the laws which governed them consisted — First, of the common law
of England, so far as they had tacitly adopted it, as suited to their con-
dition ; second, of the statutes of England or of Great Britain, amend-
atory of the common law, which they had in like manner adopted;
and, third, of the colonial statutes. The first and second constituted
the American common law, and by this, in great part, are rights ad-
judged and wrongs redressed in the American States to this day."
Thus it appears that, when the Constitution of the United States was
adopted, the general rules of the common law. in so far as they were
applicable to the conditions then existing in the colonies, and subject
to the modifications necessary to adapt them to the uses and needs of
the people, were recognized and wen; in force in the colonies, and the
100 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I.
people thereof were entitled to demand the enforcement thereof through
the judicial tribunals then existing. The adoption of the Constitution
did not deprive the people of the several colonies of the protection and
advantages of the common law. The Constitution itself recognizes the
fact of the continued existence of the common law, and indeed it is
based upon the principles thereof, and its correct interpretation requires
that its provisions shall be read and construed in the light thereof. By
sect. 2, art. 3, of the Constitution it is declared that: "The judicial
power shall extend to all cases in law and equity, arising under this
Constitution ; the laws of the United States, and treaties made or which
shall be made, under their authority ; ... to all cases of admiralty and
maritime jurisdiction. . . ."
In this section we have a clear recognition of the existence of the
several s}*stems of law, equity, and admiralty. The section does not
create these systems, but, recognizing their existence, it declares the
extent of federal jurisdiction in regard thereto. The rules and prin-
ciples which form the laws maritime are not created by the Constitution,
for, as is said b}' Chief Justice Marshall, in Insurance Co. v. Canter.
1 Pet. 511, 546 : "A case in admiralty does not, in fact, arise under
the Constitution or laws of the United States. These cases are as old
as navigation itself, and the law admiralty and maritime, as it has
existed for ages, is applied by our courts to the cases as they arise."
In Xew Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344,
390, it is declared that: " By the Constitution, the entire admiralty
power of the country is lodged in the federal judiciary, and Congress
intended, by the ninth section, to invest the district courts with this
power, as courts of original jurisdiction."
The Constitution does not create a system of maritime law, nor does
it enact that the system, as prevailing in England or in Europe, shall
become the law of the United States ; but, recognizing the fact that the
law maritime was then in force in the colonies, it confers the jurisdic-
tion upon the federal courts. The same is true of the equitable ju.ris-
diction. It is certainly not necessary to cite authorities in support of
the proposition that the Constitution of the United States neither
created nor enacted a system of equitable jurisprudence and procedure,
but, recognizing the existence of the system, it conferred upon the
courts of the United States jurisdiction in equity, maintaining the pre-
existing distinction between equitable and legal remedies. Is it not
clear that the same is true in regard to the common law? At the time
of the adoption of the Constitution there was in existence in the
colonies the s} - stem of the common law, of equit}-, and of admiralty.
It was not the purpose of the Constitution to abrogate an}' one of these
systems. One of the main objects sought to be accomplished was to
establish the extent of the legislative and judicial powers of the
national government then being created. Owing to the fact that it was
not proposed to destroy the State governments then existing, but, con-
tinuing these, to create a national government, to be paramount and
SECT. III.] MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. 101
supreme within its limited sphere, it became a necessity that the
extent of the powers of each government should be defined ; and, in a
general sense, it may be said that the plan adopted was to confer upon
the national government the power of control over subjects affecting
the country or people at large, reserving to the States control over all
that are local, or which do not require a uniform system or law for
their proper regulation. Can it be denied that, at the time of the
adoption of the Constitution, the people of the several States possessed
the rights, and were subject to the duties and obligations, recognized
and enforced b\ T the principles and modes of procedure forming the
separate systems of law. equity, and admiralty? Is there any ground
for holding that it was the purpose of the Constitution to recognize the
continuing existence of the systems of equity and admiralty, but to
deny the existence of the common law, or to refuse its recognition?
Such a construction of its provisions is clearly inadmissible. The
principles and modes of procedure of the three systems of law, equity,
and admiralty, in force previous to the adoption of the Constitution,
remained in force after its adoption, save as to such modifications as
were created by the provisions of the Constitution. That this is the
true view of the question appears, not only from the references found
in the Constitution, and the amendments thereto, to the common law,
as a recognized and existing system, but in the judiciary act of 1789
the several branches of the law, such as the law of nations, the common
law, the admiralty and maritime law, and equity are fully recognized
as then existing, and the jurisdiction arising under the same is divided
between the courts created by that act. That the principles of the
common law have always been recognized and enforced in proper cases
by the courts of the United States is a proposition so plain that a cita-
tion of the cases is not necessary for its support; yet, to show the
course of judicial action in tins particular", a few of the numerous cases
to be found in the decisions of the Supreme Court will be quoted from.
In Cox v. U. S., G Pet. 172, 204, wherein suit was brought in the
United States court in Louisiana upon the bond of a navy agent, it
was held that the bond must be deemed to be a contract performable at
the city of Washington, wt and Hie liability of the parties must be gov-
erned by the rules of the common law." To the same effect is the
riding in Duncan v. U. S., 7 Pet. 4.'5"). In Swift v. Tyson, 16 Pet.
1, 18, — a case involving the law of negotiable paper, — the Supreme
Court held that the provisions of the thirty-fourth section of the .Judi-
ciary Actof 17*9 did not require the courts of the United States to follow
the ruling of the State courts upon the principles established in the
general commercial law, it being said by Mr. Justice Story, speaking
for the court, that: "• We have not, now the slightest difficulty in holding
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 commer-
cial nature, the true interpretation and effect whereof are to be sought,
102 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO, [CHAP. I.
not in the decisions of the local tribunals, but in the general principle
and doctrines of commercial jurisprudence."
To the same effect is the ruling in Oates v. Bank, 100 U. S. 239, and
Railroad Co. v. National Bank, 102 U. S. 14. In the latter case it is
said : " The decisions of the New York court, which we are asked to
follow in determining the right of parties under a contract there made,
are not in exposition of any law local to that State, but as to their
rights under the general commercial law existing throughout the Union,
except where it may have been modified or changed by some local
statute. It is a law not peculiar to one State, or dependent upon local
authority, but one arising out of the usages of the commercial world."
In Fenn v. Holmes, 21 How. 481, 484, it is said: "In every in-
stance in which this court has expounded the phrases ' proceedings at
common law' and 'proceedings in equity,' with reference to the exer-
cise of the judicial powers of the courts of the United States, they will
be found to have interpreted the former as signifying the application
of the definitions and principles and rules of the common law to the
rights and obligations essentially legal, and the latter as meaning the
administration with reference to equitable, as contradistinguished from
legal, rights of the equity law, as defined and enforced by the Court of
Chancery in England."
In Railroad Co. v. Lockwood, 17 Wall. 357, the question of the
power of a common carrier to exempt himself by contract from the
liability placed upon him by the common law is discussed at length,
and it was held that the court was bound to decide the question upon
the ground of public policy, and according to the principles of general
commercial law.
The case of Kohl v. U. S., 91 U. S. 367, 374-376, presented the
question whether the United States could exercise the right of eminent
domain for the purpose of condemning land in the city of Cincinnati,
to be used as a site for a public post-office. The right was maintained,
it being said that : " When the power to establish post-offices and to
create courts within the States was conferred upon the federal govern-
ment, included in it was authority to obtain sites for such offices and
for court-houses, and to obtain them bj' such means as were known
and appropriate. The right of eminent domain was one of those
means, well known when the Constitution was adopted, and employed
to obtain lands for public uses. Its existence, therefore, in the grantee
of that power, ought not to be questioned. . . . The right of eminent
domain always was a right at common law. It was not a right in
equity, nor was it even the creature of a statute. The time of its exer-
cise may have been prescribed by statute, but the right itself was
superior to any statute. ... It is difficult, then, to see why a proceed-
ing to take land by virtue of the government's eminent domain, and
determining the compensation to be made for it, is not, within the mean-
ing of the statute, a suit at common law, when initiated in a court. It
is an attempt to enforce a legal right."
SECT. III.] MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. 103
In Moore v. U. S., 91 U. S. 270, the question was, by what law is
the Court of Claims to be governed in respect to the admission of evi-
dence in the hearings had before it? and the Supreme Court held that :
" In our opinion it must be governed by law ; and we know of no sjs-
tem of law bv which it should be governed other than the common law.
That is the system from which our judicial ideas and legal definitions
are derived. The language of the Constitution and of many acts of Con-
gress could not be understood without reference to the common law.
The great majority of contracts and transactions which come before
the Court of Claims for adjudication are permeated, and are to be
adjudged, by the principles of the common law."
In Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S.
6S7, 681. it is said : " The Atchison, Topeka iS: Santa Fe Company, as
the lessee of the Pueblo & Arkansas Valley Railroad, has the statutory
right to establish its own stations, and to regulate the time and manner
in which it will carry persons and property, and the price to be paid
therefor. As to all these matters it is undoubtedly subject to the
power of legislative regulation, but, in the absence of regulation, it
owes only such duties to the public, or to individuals, associations, or
corporations, as the common law, or some custom having the force of
law, has established for the government of those in its condition.''
In Railroad Co. v. Baugh, 149 U. S. 308, was presented the ques-
tion whether the engineer and fireman of a locomotive engine are fellow
servants, so that the fireman could not recover from the railway com-
pany damages for injuries caused by the negligence of the engineer,
there being no statutory enactment to that effect in the State of Ohio,
wherein the accident happened Under the decisions of the Supreme
Court of Ohio, liability on part of tiie railway company existed ;
but the Supreme Court of the United States refused to follow these rul-
ings, holding that : " The question is essentially one of general law.
It does not depend upon any statute. It does not spring from local
usage or custom. There is in it no rule of property, but it rests upon
those considerations of right and justice which have been gathered into
the great body of the rules and principles known as the ' common
law.' There is no question as to the power of the States to legislate
and change the rules of the common law in this respect, as in others ;
but, in the absence of such legislation, the question is one determin-
able only by the general principles of that law."
Citations of this character from the decisions of the Supreme Court
might be continued almost without limit. From them it appears,
beyond question, that the Constitution, the Judiciary Act of 1789, and
all subsequent statutes upon the same subject, are based upon the
general principles of the common law, and that, to a large extent, the
legislative and judicial action of the government would be without sup-
port and without meaning if they cannot be interpreted in the light of
the common law. When the Constitution was adopted, it was not the
design of the framers thereof to create any new systems of general law,
104 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO, [CHAP. 1,
nor to supplant those already in existence. At that time there were
in existence and in force in the colonies or States, and among the
people thereof, the law of nations, the law admiralty and maritime, the
common law, including commercial law, and the system of equity.
Upon these foundations the Constitution was erected. The problem
sought to be solved was not whether the Constitution should create or
enact a law of nations, of admiralty, of equity, or the like, but rather
how should the executive, legislative, and judicial powers and duties
based upon these systems, and necessary for the proper development
and enforcement thereof, be apportioned between the national and
State governments. The principles, duties, and obligations inhering
in these systems of law were already in force. The Constitution neither
created nor adopted them, but, recognizing the fact that the} 7 were in
fact in existence, and were the possessions of the people, it proceeded
to apportion the exercise thereof between the national and State gov-
ernments. The general line of division, as already said, is based upon
the principle of national control over subjects affecting the country
and the people as a whole, and wherein uniformity of rule and control
is desirable, if not indispensable, and of State control over subjects of
local interests. The result was that upon the national government
was conferred, as to some subjects, paramount and exclusive control ;
as to others, paramount, but not exclusive, control, unless Congress by
legislation excluded State action ; as to others, control concurrent with
the States. The division thus made is as to the subjects of legislative
and judicial jurisdiction, and not a division of systems of law. The
Constitution does not place under national control the law of nations
and of admiralty, and under State control common law and equity, but
it divides the subjects of governmental control, and each subject car-
ries with it the law or system appropriate thereto. The subject-matter
of dealing with other nations is conferred exclusively upon the na-
tional government, and of necessity all questions arising under the law
of nations and the right to seek changes in this law by conventions
with other governments are committed to the national government.
The right to regulate foreign commerce is conferred exclusively upon
Congress, and of necessity that confers upon the national legislature
and judiciary the duty of enforcing the law maritime. The right to
regulate interstate commerce is conferred exclusively upon Congress,
and, when it legislates, the resulting statute will be interpreted with
reference to the general principles of the common law. In the absence
of Congressional regulation of interstate commerce, the courts called
upon to decide cases arising out of interstate commerce must apply
the principles of the common law. So, also, when called upon to
decide cases arising out of intrastate commerce, when there is no state
statute or law applicable thereto, the courts must apply the common
law. The apportionment of control over foreign, inter and intra state
commerce, made by the Constitution, did not affect the applicabilit}' of
the common law thereto. It divided the control over the general sub
SECT. III.] MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. 105
ject of commerce, and apportioned to the national government exclu-
sive legislative control over foreign and interstate commerce ; and this
apportionment carried with it the right to confer upon the national
judiciary jurisdiction over cases involving foreign and interstate com-
merce, and, in the exercise of this jurisdiction, the courts are bound
by the general principles of the common law, save where the same have
been changed by legislative enactment.
To me it seems clear, beyond question, that neither in the Constitu-
tion, nor in the statutes enacted by Congress, nor in the judgments of
the Supreme Court of the United States, can there be found any sub
stantial support for the proposition that, since the adoption of the
Constitution, the principles of the common law have been wholly abro-
gated touching such matters as au- by that instrument placed within
the exclusive control of the national government. But it is not to be
denied that support to the proposition is to be found in part of the
reasoning employed by Mr. Justice Matthews in announcing the opin-
ion of the Supreme Court in Smith v. Alabama, 124 U. S. 4G5. This
case came before the Supreme Court upon a writ of error bringing
into review a judgment of the Supreme Court of Alabama affirming a
judgment of the city court of Mobile in habeas corpus proceedings,
and which presented the question whether a statute of the State of
Alabama, providing for the examination and licensing engineers en-
gaged in operating locomotive engines in that State, was void, as
applied to engineers running interstate trains, on the ground that it
was an attempt to regulate interstate commerce. The case did not in
fact involve any question in regard to the common law. The judg-
ment of the court was that the statute was passed to secure the safety
of the public in person and property, and any effect it had upon inter-
state commerce was incidental and remote ; and the validity of the
statute was sustained. In the course of the opinion it is pointed out
that the laws of the States provide for remedies in cases of nonfea-
sance or misfeasance on part of common carriers, and that it had never
been held that such laws were void, as being unconstitutional regula-
tions by the State of interstate commerce. Following these proposi-
tions, we find it said : kt But for the provisions on the subject found in
the local law of each State, there would be no legal obligation on the
part of the carrier, whether ex contractu or ex delicto, to those who
employ him ; or. if the local law is held not to apply where the carrier
Is engaged in foreign or interstate commerce, then, in the absence of
laws passed by Congress or presumed to be adopted by it, there can be
no rule of decision based upon rights and duties supposed to grow out
of the relation of such carriers to the public or to individuals. In
other words, if the law of the particular State does not govern that
relation, and prescribe the rights and duties, which it implies, then
there is and can be no law thai does until Congress expressly supplies
it, or is held by implication to have supplied it, in cases within its
jurisdiction over foreign and interstate commerce. The failure of Con-
106 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I.
gress to legislate can be construed only as an intention not to disturb
what already exists, and is the mode by which it adopts, for cases
within the scope of its power, the rule of the State law, which, until
displaced, covers the subject. 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 alterations as ma} r
be provided by its own statutes. . . . There is, however, one clear
exception to the statement that there is no national common law. The
interpretation of the Constitution of the United States is necessarily
influenced by the fact that its provisions are framed in the language of
the English common law, and are to be read in the light of its history
The code of constitutional and statutory construction, which, therefore,
is gradually formed by the judgments of this court, in the application
of the Constitution and the laws and treaties made in pursuance thereof,
has for its basis so much of the common law as may be implied in the
subject and constitutes a common law, resting on national authority."
The meaning to be given to this last sentence quoted from the opin-
ion of Mr. Justice Matthews is not at all clear. If it be true that the
Supreme Court, in construing the provisions of the Constitution, and
the laws and treaties made in pursuance thereof, has the right to adopt,
as the basis of its constitution, so much of the common law as may be
implied in the subject, which proposition seems to be affirmed, then is
it not true that the principles of the common law, so far as applicable
to the subject-matter, are recognized as in force touching matters of
national control? It is evident that it was present to the mind of
the learned justice whose opinion we are considering that it would not
do to hold that the failure of Congress to legislate touching the duties
and obligations of common carriers engaged in interstate commerce
left the public without any law for its protection, and therefore the
suggestion is made that : " The failure of Congress to legislate can be
construed only as an intention not to disturb what already exists, and
is the mode b} r which it adopts, for cases within the scope of its power,
the rule of the State law."
The rules prevailing in the different States may be variant or antag-
onistic. A delivery of goods may be made to a common carrier in
California, for transportation to New York. Do the legal relations,
duties, and obligations existing between the shippers and carrier vary
and change as the shipment passes State boundaries, so as to accord
with the local law of each State through which the carrier may choose
to take them? Upon such a theory, what becomes of the principle
that the exclusive control of foreign and interstate commerce was com-
mitted to Congress in order to secure a uniform rule touching the
same? I would amend the statement of Mr. Justice Matthews so that
it should read: " The failure of Congress to legislate can be construed
only as an intention not to disturb what already exists ; and as, at the
time of the adoption of the Constitution, common carriers, under the
SECT. HI.] MUBBAY V. CHICAGO & KOETH WESTERN RAILWAY CO. 107
principles of the common law, were subject to certain duties and obliga-
tions, the failure on the part of Congress to legislate thereon evinces
the legislative intent to leave the rules and principles of the common
law in full force, as controlling and defining the relations, duties, and
obligations of common carriers engaged in interstate commerce."
It will be further noticed that it is suggested in the opinion that it
might be implied that Congress has supplied a law or rule governing
foreign and interstate commerce. Is there not as good ground to be
found in the provisions of the Constitution, and the statutes based
thereon, for implying the recognition of the principles of the common
law, as there is for implying the recognition of the law of nations, or
the maritime law as applied to foreign commerce? Suppose a mer-
chant or manufacturer residing in the United States makes a shipment
of goods by land into the dominion of Canada, and another shipment
of goods to England by sea, in both instances the goods being delivered
to common carriers for transportation and delivery ; would not the
duty and obligations resting upon the steamship line to which the
goods destined for England were delivered be measured by the law
maritime? What express provision of the Constitution or of the stat-
utes of the United States declares that shipowners engaged in foreign
commerce are subject to the law maritime? Has Congress ever
adopted a code of laws declaring what the rules and principles are that
are applicable to foreign commerce carried on over the high seas or
the navigable waters of the country? It has adopted specific provi-
sions modifying the general principles of the law, but it has always
recognized the existence of the general system. Can it be contended
that, in the absence of legislation by Congress expressly adopting the
law maritime, foreign shipments upon the ocean are without legal
protection ; that, from the acceptance of the goods for transportation
and delivery, no implied contract is created ; that the respective rights
and duties of the parties are such, and such only, as may be created
by express contract between the parties? Even if an express contract
is entered into, by what rules and principles are its provisions to be
construed? That the law maritime has been in force, and is now in
lone, in the United States, cannot be questioned ; and yet it was not
creat< (1 or expressly enacted in the ( institution or any act of Congress.
That system of law was in existence when the Constitution was
adopted, and its existence is recognized in the Constitution, and pro-
vision is made for enforcing the same by conferring admiralty jurisdic-
tion upon the coi i rts of the United states. From this the inference, and
the only inference, is that it, was not, the intent, of the Constitution to
abrogate the then existing maritime law. but. recognizing its existence,
to provide for its enforcement in all matters to which it is applicable,
including foreign commerce. There is no doubt, therefore, that, as to
thai pail of foreign commerce which is carried on through the agency
of common carriers upon navigable waters, there is a system of law
applicable thereto, and courts having jurisdiction to enforce the prin«
108 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I
ciples of the system. How is it, in regard to that part of foreign com-
merce carried on with neighboring countries, where the transportation
is by land, as in the case supposed of a shipment of goods to Canada?
It is said that the common carrier engaged in foreign commerce cannot
be held subject to the principles of the common law, because Congress
has not expressly adopted the common law, and therefore it cannot be
applied to shipments made to foreign countries. Is not the existence
of the common law as fully recognized in the Constitution, and the
laws of Congress based thereon, as is the existence of the law mari-
time? Do not the Constitution and the judiciary act confer upon the
courts of the United States full common-law jurisdiction? Are not the
courts of the United States, therefore, authorized to enforce the prin-
ciples of the law maritime and the common law in all cases to which
they are applicable, and which are within the jurisdiction of the federal
courts? Suppose a shipment of goods is made from San Francisco,
through New York, to England. The carrier receives the goods to be
sent by land to New York, and thence by ship to England. No spe-
cial contract is made. This shipment is a matter of foreign commerce.
When placed on shipboard at New York for transportation to England,
is there any doubt that the law maritime is applicable thereto, and
that, if litigation should arise regarding the ocean transportation, the
courts of the United States would apply the principles of the law mari-
time thereto? If litigation with the common carrier should arise
touching the land transportation, would not the courts of the United
States have the right to apply the principles of the common law
thereto? Upon what fair principle of construction can it be held that
the Constitution so far recognizes the law maritime that it must be
held to be in force, but that the recognition of the common law is not
sufficient to keep it in force in matters of national concern?
In Swift v. Railroad Co., 58 Fed. 858. — a case decided by the
United States Circuit Court for the Northern District of Illinois, —
it is held that the law of the State of Illinois could not be applied
to contracts for shipments of property into other States ; that inter-
state commerce cannot be controlled by the local law of the State,
either statutory or common ; that, previous to the enactment of the
Interstate Commerce Act by Congress, there was no act of Congress
reo-ulating interstate commerce ; that the United States had never
adopted the common law ; that, previous to the adoption of the Inter-
state Commerce Act in 1887. there was therefore no law controlling the
relations of carriers and shippers in regard to interstate commerce.
If it be true that the principles of the common law are not in force in
this country in regard to such matters as are placed under national con-
trol, then it is difficult to escape the conclusions reached by Judge
Grosscup in the case just cited ; but I cannot concur in the proposition
that the principles of the common law have no existence in this country
as applicable to national affairs, or that these principles have only a
local existence, due to their adoption by the several States. It is
SECT. III.] MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. 109
certainly a novel proposition that up to the date of the enactment of
the Interstate Commerce Act, in 1887, all the foreign and interstate
commerce of the country was without the pale of law, and that there
were no legal rules or principles which governed or controlled the
relations between the shippers or carriers engaged in that business ;
and yet such seems to be the conclusion in Swift v. Railroad Co. In
Railway Co. v. Osborne, 3 C. C. A. 347, 52 Fed. 912, — a case involv-
ing the construction of the Interstate Commerce Act, — Mr. Justice
Brewer, speaking for the court, held : " It was the first effort of the
general government to regulate the great transportation business of the
country. That business, though of a quasi public nature, and there-
fore subject to a governmental regulation, has, as a matter of fact, been
carried on by private capital through corporations. The fact that it
was a public business always prevented the owners of capital invested
in it from charging, like owners of other propert}', any price they saw
fit for its use. A reasonable compensation was all they could exact,
and he who felt aggrieved by a charge could always invoke the aid of
the courts to protect himself against it."
Mr. Justice Brewer is here speaking of the condition of affairs before
the enactment of the Interstate Commerce Act, and he expressly declares
that, prior to that act, common carriers engaged in interstate commerce
were bound to charge only a reasonable compensation, or, in other
words, they were subject to the principles of the common law.
It is further argued that it has been repeatedly decided that the
inaction of Congress, up to 1887. in passing any law regarding inter-
state commerce, shows that the intent was to leave such commerce free
from all restraint, and therefore common carriers assumed no common-
law liability in undertaking shipments of goods from one State to
another. The decisions of the Supreme Court in the numerous casec
involving the validity of State laws affecting foreign and interstate
commerce have always held that the inaction of Congress could not be
construed to mean that the States were at liberty to legislate in regard
to these subjects in the absence of congressional legislation, but that
such inaction evidenced that it was the intent of Congress to leave
commerce, foreign and interstate, free from all legislative restrictions.
It has never been held, however, that the freedom of commerce meant
that those engaged in carrying it on were not under legal restraints
and obligations growing out of the relations of carriers and shippers.
If the theory now contended for by the defendant company be correct,
then from the foundation of the government up to April 4, 1887. when
the Interstate Commerce Act took effect, it was open to all the common
carriers engaged in foreign or interstate commerce to act as they pleased
in regard to accepting or refusing freights, in regard to the prices they
might charge, in regard to the care they should exercise, and the speed
with which they should transport and deliver the property placed in
their charge. What more disastrous restraint upon the true freedom
of foreign and interstate commerce could be devised than the adoption
110 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I.
of the doctrine that the inaction of Congress left the carriers engraved
therein entirely free to accept and transport the property of one man
or corporation, and to refuse to accept the like property of another, or
to transport the products of one locality, and to refuse to transport
those of another ; to charge an onerous toll upon the property of one,
and carry that of his neighbor for nothing? Can it be possible that
the transcontinental railwaj's and other federal corporations engaged in
foreign and interstate commerce, in the absence of congressional legis-
lation, were not under any legal restraints, and that the citizen, in his
dealings with them, was without legal remed}' or protection? In the
absence of congressional legislation, what law could be applied to
them, with regard to matters under the exclusive control of the
national government, except the principles of the common law or the
law maritime? I cannot yield assent to the broad proposition that, as
to those subjects over which Congress is given exclusive legislative con-
trol, there is no law in existence if Congress has not expressly legis-
lated in regard thereto. The true doctrine, in nrv judgment, is that
the Constitution of the United States, when it was adopted, gave full
recognition to the existing systems of the law of nations, of admiralty
and maritime, of the common law, and equity. It apportioned to the
national government, then created, control over certain subjects,
exclusive as to some, concurrent as to others. This apportionment of
control over certain subjects necessitated the exercise of both legisla-
tive and judicial powers, and provision was made for the former in the
creation of Congress, and for the latter in the creation of the Supreme
Court, and by conferring authority on Congress to create other courts.
The courts thus created were vested with jurisdiction in admiralt}' and
at common law and in equity. If there is no common-law jurisdiction
to be exercised, and no common-law principles to be enforced, why
create courts for that purpose? But it is said in Swift v. Railroad Co.,
and the same thought is found in other cases, that " the courts of the
United States have had many occasions to enforce the common law, but
in every instance it has been as the municipal law of the State by which
the subject-matter was affected." This may be generally, but it is not
universally, true. In Mississippi Mills v. Colin, 150 U. S. 202, we
find a case which was originally brought in a court of the State of
Louisiana, in which State the civil, and not the common, law is in force.
The suit was removed into the United States Circuit Court, and was by
that court dismissed for want of jurisdiction, upon the ground that,
being a suit in equity, it could not be maintained, because the remedj"
at law was sufficient. The Supreme Court reversed the ruling, holding
that even if, under the law of the State of Louisiana, — that is, the
civil law, — the remedy at law was sufficient, yet that fact would not
defeat the jurisdiction in equity of the federal court, for the reason
" that the inquiry, rather, is whether, by the principles of common law
and equity, as distinguished and defined in this and the mother country
at the time of the adoption of the Constitution of the United States,
SECT. III.] MURR.SY V. CHICAGO & NORTHWESTERN RAILWAY CO. Ill
the relief here sought was one obtainable in a court of law, or one
which only a court of equity was fully competent to give." In this
ruling the Supreme Court was certainly not enforcing the municipal law
of the State of Louisiana. If courts of the United States can only
recognize and enforce the principles of the common law when the same
form part of the municipal law of the State, how comes it that the
Supreme Court directed the Circuit Court in Louisiana to apply the
principles of the common law and of equity, as the} - existed when
the Constitution was adopted, to the decision of the question of jurisdic-
tion arising in that case? Suppose a State should enact that all ques-
tions of title to realty should be triable only in a Court of Equity, and in
accordance with the principles of equity ; would that enactment confer
upon the courts of the United States the same jurisdiction, and thus
permit a question of strict legal title to be tried in equity in the courts
of the United States, if, according to the principles of the common
law in force when the Constitution was adopted, an action in ejectment
would afford an ample remedy? Clearly, the federal court could in
such case entertain only the common-law action, and in so doing it
would be acting under and enforcing the principles of the common law,
not the municipal law of the State, for it would be disregarding that,
but the common law brought by our ancestors from the mother country.
Perhaps the most forcible illustration of the fact that the government
of the United States does recognize and enforce the principles of the
common law with regard to subjects wholly within national control, and
not as part of the municipal law of any State, is found in connection
with the organization and proceedings of the Court of Claims. This
court is not a court in and for the District of Columbia, nor is it a court
of any district or circuit. It has jurisdiction over cases arising in any
of the States or Territories. It has jurisdiction to hear and determine
cases against the United States. Of all the courts in the Union, it is
the one dealing with matters of national concern, arising under the
Constitution and laws of the United States, and not under the local law
of the several States. The form of procedure is statutory, supple-
mented by rules of its own adoption. As to this court thus organized,
and clothed with a jurisdiction wholly national in its character, the
express ruling of the Supreme Court is to the effect that the general
law controlling its action is the common law. To repeat a quotation
already made from the opinion of the Supreme Court in Moore y. U. S.,
91 U. S. 270, in regard to the Court of Claims: " In our opinion, it
must be governed by law ; and we know of no system of law by which
it should be governed other than the common law. . . . The great
majority of contracts and transactions which come before the Court of
Claims for adjudication are permeated and are to be adjudged by the
principles of the common law."
To the same effect is the ruling in U. S. v. Clark, 96 U. S. 37, and
there are no decisions to the contrary. There is no act of Congress
which adopts the common law as the ride of action for the Court of
112 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I.
Claims. The reasons which declare the common law to be the system
governing its action apply equally to the other courts of the United
States. B\ T the provisions of the Act of Congress of March 3, 1887,
concurrent jurisdiction with the Court of Claims is conferred upon the
District and Circuit Courts of the United States. Many of the claims
against the United States arise out of implied contracts ; that is, the
facts are such that, according to the principles of the common law, an
obligation to pay for the use of property is implied, in the absence of
an express contract. Thus, in U. S. v. Palmer, 128 U. S. 262, the
judgment of the Court of Claims awarding to Palmer the sum of
$2,256.75 as a reasonable compensation for the use, by the govern-
ment, of certain patented military equipments, was sustained by the
Supreme Court, it being said that " we think an implied contract for
compensation fairly arose under the license to use, and the actual use,
little or much, that ensued thereon." In this case there was no express
agreement for compensation nor for the amount thereof. Applying
the principles of the common law to the facts, the Court of Claims held
that the law would imply a contract to pay a reasonable compensation,
and the Supreme Court affirmed the judgment. Had Palmer brought
the suit in a Circuit Court of the United States instead of in the Court
of Claims, is it possible he would have been defeated on the ground
that the local law of the State did not apply, and that the common law
could not be invoked in a Circuit Court of the United States, and
therefore there was no law applicable to the situation in the absence of
an express contract? The right of recovery in siu-h cases is not de-
pendent upon the court in which the action may be brought, but upon
the question of the principles of law — that is, the system of law —
which are applicable to the situation, and which define the rights and
obligations of the parties. Under the principles of the common law,
as the same existed at the time of the separation between the colonies
and Great Britain, common carriers of goods assumed certain duties
and obligations to their patrons. The adoption of the Constitution of
the United States certainly did not change the relation existing be-
tween the carrier and the public, nor in any way affect the obligations
assumed by the carrier. The Constitution conferred legislative control
over foreign and interstate commerce upon Congress, reserving to the
several States legislative control over intrastate commerce. This
division of legislative control did not, however, abrogate the common-
law principle then in force. Thus, in Boyce v. Anderson, 2 Pet. 150,
the question presented was whether the strict rule of the common law
in regard to liability for goods lost could be applied in the case of
slaves ; and it was held that it would not be applied, as slaves were
human beings having a volition of their own ; but it was held that
" the ancient rule that the carrier is liable only for ordinary neglect
still applies to them." In determining the rights of the parties in this
case, the Supreme Court, speaking by Marshall, C. J., relied upon the
common law for its guidance. In Bank of Kentucky v. Adams Exp.
SECT III.] MURKAY V. CHICAGO & NORTHWESTERN RAILWAY CO. 113
Co., 93 U. S. 174, the question arose as to the liability of the express
company for certain packages of money sent from New Orleans, La. ,
to Louisville, Ky., and which were destroyed by fire while in transit,
the bills of lading containing stipulations in respect to the liability of
the company. It will be noticed that the shipment was from one State
to another, and therefore was of the nature of interstate commerce.
In the course of the opinion it is said : " We have already remarked
that the defendants were common carriers. . . . Having taken up the
occupation, its fixed legal character could not be thrown off by any
declaration or stipulation that they should not be considered such car-
riers. The duty of a common carrier is to transport and deliver safely.
He is made, by law, an insurer against all failure to perform this duty,
except such failure as may be caused by the public enemy, or by what
is denominated the ' act of God.' . . . The exception or restriction to
the common-law liability introduced into the bills of lading given by
the defendants. . . ."
Thus we have the express declaration that a common carrier engaged
in interstate commerce is subject to the common-law liability pertain-
ing to his occupation. Many other cases of like import are to be found
in the Supreme Court Reports, in which it is assumed that the princi-
ples of the common law are applicable to common carriers engaged in
foreign or interstate commerce ; and I can see no good reason for hold-
ing that the duties and obligations imposed upon a common carrier by
the common law are not operative when he undertakes the transporta-
tion of property from State to State. It is said in argument that the
obligations imposed upon common carriers are largely based upon con-
siderations of public policy ; that each State determines for itself what
its public policy demands ; and that the courts of the United States
can recognize and enforce only the public policy of the State. There
is a public policy of the nation as well as that of the several States.
As to all such matters as are reserved to the States, and are therefore
without the plane of national control, it may well be that it is for each
State to determine what public policy dictates with regard thereto.
The rule of the common law is that no one can lawfully do that which
is injurious to the public, or which conflicts with the prevailing senti-
ment or interest of the community. In determining whether a given
act or course of conduct is injurious to the public interests, regard
must be had to the circumstances. That which the public interests
may demand in one locality may not be suited to the interests of an-
other locality. There are many matters of a local nature which it is for
each State to regulate and control for itself, either by legislation, or
by judicial declarations of the results derivable from the application of
common-law principles to the existing surroundings. On the other
band, there are many matters which affect the entire country, which
are therefore of national importance, and which must be dealt with
accordingly. In deciding legal questions arising out of the latter class
of cases, courts are not confined to the inquiry whether the particular
114 MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. [CHAP. I.
State in which the court may be sitting, has an established public
policy touching the subject-matter, but they will apply the recognized
principles of general jurisprudence, to wit, the principles of the com-
mon law, or of the law of nations, or of the law maritime, as the nature
of the particular case may demand. Thus, in Oscanyan v. Arms Co.,
103 U. S. 261, the Supreme Court held that a contract entered into
between a consul general of the Ottoman government residing at New
York, and a company engaged in supplying arms, wherelw the former
was to be paid a commission upon all contracts secured through his
aid was void, even though it might be valid in Turkey, it being said :
" But admitting this to be otherwise, and that the Turkish government
was willing that its officers should take commissions on contracts ob-
tained for it by their influence, that is no reason why the courts of the
United States should enforce them. Contracts permissible by other
countries are not enforceable in our country if they contravene our
laws, our morality, or our policy."
The variety of cases in which this doctrine is applied may be seen
by reference to Marshall v. Railroad Co., 16 How. 314; Tool Co. v.
Norris, 2 Wall. 45 ; Trist v. Child, 21 Wall. 441 ; Meguirev. Corwine,
101 U. 8. 108; Texas v. White, 7 Wall. 700; Hanauer v. Doane, 12
Wall. 342 ; Thomas v. City of Richmond, id. 349 ; Woodstock Iron
Co. v. Richmond & D. Extension Co., 129 U. S. 643. In these cases,
and others of similar import, the Supreme Court does not base the
rulings upon the local law of an} r State, for in the majority of the cases
the question arose in connection with matters outside the plane of
State control. Thus, in Trist v. Child, supra, a bill in equit}' was filed
to enforce an agreement for services rendered in getting through Con-
gress a bill for payment to Trist of a remuneration for his services to
the United States in negotiating the treaty of Guadalupe Hidalgo with
Mexico. Mr. Justice Swayne, speaking for the court, declared that :
" It is a rule of the common law, of universal application, that where a
contract, express or implied, is tainted with either of the vices last
named as to the consideration on the thing done, no alleged right
founded upon it can be enforced in a court of justice."
Applying this rule of the common law to the facts of the case, the
agreement sought to be enforced was held void.
The conclusion I reach upon this subject is that at the time of the
separation of the colonies from the mother countr}', and at the time of
the adoption of the Constitution, there was in existence a common
law, derived from the common law of England, and modified to suit
the surroundings of the people ; that the adoption of the Constitution
and consequent creation of the national government did not abrogate
this common law ; that the division of governmental powers and duties
between the national and State governments provided for in the Con-
stitution did not deprive the people who formed the Constitution of the
benefits of the common law; that, as to such matters as were by the
Constitution committed to the control of the national government,
SECT. III.] MURRAY V. CHICAGO & NORTHWESTERN RAILWAY CO. 115
there were applicable thereto the law of nations, the maritime law, the
principles of equity, and the common law, according to the nature of
the particular matter; that, to secure the enforcement of these several
systems when applicable, the Constitution and Congress, acting in fur-
therance of its provisions, have created the Supreme Court of the
United States and the other courts inferior thereto, and have conferred
upon these courts the right and power to enforce the principles of the
law of nations, of the law maritime, of the system of equity, and of the
common law in all cases coming within the jurisdiction of the federal
courts, applying, in each instance, the S3'stein which the nature of the
case demands ; that, as to all matters of national importance over
which paramount legislative control is conferred upon Congress, the
courts cf the United States (the Supreme Court being the final arbiter)
have the right to declare what are the rules deducible from the princi-
ples of general jurisprudence which control the given case, and to
define the duties and obligations of the parties thereto ; that the com-
mon law now applicable to matters committed to the control of the
national government is based upon the common law of England, as
modified by the surroundings of the colonists, and as developed by the
growth of our institutions since the adoption of the Constitution, and
the changes in the business habits and methods of our people ; that
the binding force of the principles of this common law, as applied to
matters affecting the entire people, and placed under the control of
the national government, is not derived from the action of the States,
and is no more subject to abrogation or modification by State legisla-
tion than are the principles of the law of nations or of the law mari-
time. The transactions out of which the present controversy arises
pertain to interstate commerce. The defendant company, when en-
gaged in transporting the grain and cattle of plaintiff from Iowa to
Chicago, 111., was acting as a common carrier of property, and as-
sumed all the duties and obligations pertaining to that occupation.
In determining the obligations assumed by a common carrier engaged
in interstate commerce, the court lias the right to apply the rules of
the common law, unless the same have been changed by competent
legislative action, and therefore, in the present case, all shipments made
before the adoption of the Interstate; Commerce Act are governed by
the common law, and those made since the adoption of that act by
the common law as modified by that act. 1 . . .
1 The remainder of the opinion, upon another point, is omitted. —Ed.
116 SWIFT V. PHILADELPHIA & HEADING RAILROAD CO. [CHAP. L
SWIFT v. PHILADELPHIA & READING RAILROAD CO.
Circuit Court of the United States, N. Dist. Illinois. 1894.
[Reported 64 Federal Reporter, 59.]
Grosscup, J. This, with other cases involving the same questions,
now comes on, upon motion of the defendant, for leave to withdraw
pleas, and file demurrers to the declaration. The disposition of the
motion is dependent upon whether the declaration sets out a good
cause of action, and is practically, therefore, a demurrer to the
declaration. The declaration differs in some respects from its pred-
ecessor, but, before entering upon the effect of this difference, I pro-
pose to revert to the original questions discussed in my former opinion.
Swift v. Railroad Co., 58 Fed. 858. I do this because the conclusions
of that opinion have been persistently and ably combated, not only in
current legal periodicals, but also by some of the courts of the other
circuits.
The conclusions to which I arrived in the former opinion may be
summarized as follows: The right to recover from common carriers
for unreasonable exactions must be found in some positive law of the
land, applicable to the case in hand. Such a prohibition is in fact
found in the common law ; but it is not applicable to the case in hand,
unless there be a common law of the United States, as a distinct sov-
ereignty, because the regulation of the rates upon which the suit is
dependent is within the scope of interstate commerce, and an exclu-
sively national affair, in which the need of uniformity is imperative.
There is no common law of the United States, as a distinct sovereignty ;
and there being no pronouncement of Congress upon this subject,
either expressly or impliedly, outside of the Interstate Commerce Act,
and this action not having been brought under the Interstate Commerce
Act, there is no law, either of the United States or the State, applica-
ble to the case in hand, and there can therefore be no recovery.
The only link in the foregoing summary that has met with serious
objection is the one which affirms the non-existence of a United States
common law. Indeed, it is conceded that unless a prohibition against
the exaction of unreasonable rates is to be found in the body of the
laws in force in the United States, outside of the scope of State juris-
prudence, an action such as this cannot be sustained in the courts, either
of the United States or the States, for, confessedly, the right to sustain
them in the courts of the States is predicated upon the jurisdiction of
State courts, in most instances, to enforce personal rights growing out
of United States law. In my former opinion, I assumed that there
was no common law of the United States, basing that assumption upon
the repeated declarations of the Supreme Court. These declarations,
I confess, were not decisive of the particular cases in which they
occurred, and have not been accompanied by any discussion of the
SF.CT. III.] SWIFT V. PHILADELPHIA & READING RAILROAD CO. 117
considerations upon which they are founded ; but throughout the
literature of that tribunal they have occurred often enough, without
even the suggestion of a probable controversy, to justify their accept-
ance as the settled pronouncement of the court. I propose now, how-
ever, to consider the proposition as if it were wholly original and
undecided.
Assuming that the regulation of freight rates upon interstate com-
merce is exclusively a national affair, is there any law of the United
States applicable to the case in hand, except such as may be found to
have arisen from the legislation of Congress? Is there any common-
law prohibition against unreasonable rates? Is there any United States
common law at all? This inquiry can only be answered by taking a
rapid glance at the whole sweep of our dual system of government, and
its legal settings upon the jurisprudence of the past.
What is law? In the sense under review, it is a rule of civil conduct
prescribed bj' the supreme power in the State. Mere definitions of
right and wrong are not necessarily law. They may be so manifestly
just that they ought to control civil conduct, but the citizen is under
no legal obligation to obey them unless they are the expressed com-
mand of the supreme power in the State. A rule of civil conduct, to
have the force of law, must emanate from some power that is supreme
in the field to which the rule belongs. When we would know what the
law is, therefore, we must inquire always from what power it proceeds,
and the right of that power to prescribe it.
No one doubts the existence of some law ot the land everywhere.
No plain or valley, no nook or corner, to which the dominion of man
has extended itself, is without some law of the land. Indeed, law is
the breath of dominion. Its commands are to be found in the express
enactments of the sovereign legislative bodies, in the body of our
judicial decrees, and in those ancient systems of law to which these
later emanations are only supplementary. The last named were
brought to the shores of America bv the feet of the early emigrants;
by the Englishmen, the common law ; and, by the Frenchmen and
Spaniards, the civil law. Each of these, — the civil and the common
law. — within the respective boundaries into which they have settled,
constitutes the fundamental rules of civil conduct; and there is no inch
Of our soil in which one of them is not in force. But, as we have seen,
law is not simply a rule of civil conduct, but a rule prescribed by the
supreme power in the State. Now, the supreme power of the Stale is,
with us, divided. The line of division is not territorial, but topical.
Each inch of soil is subject, to the rule of two powers of State, over-
lapping each Other in some respects, but- never conflicting, ami divided
always according to prearranged constitutional adjustments. In some
field-, the nation is the sole power to prescribe rules of conduct, in other
fields that power is exclusively in the State, and in still other fields it
is concurrent. It is plain that in the fust of these, fields the emanation
Ufa rule of conduct from the State, as, in the second, a like emanation
118 SWIFT V. PHILADELPHIA & READING RAILROAD CO. [CHAP. I.
from the nation, would not have the effect of law. Neither, in the field
of the other, is a power in the State. The nation has not the power to
prescribe rules of civil conduct within the field exclusively belonging
to the State. The State has not the power to prescribe rules within the
fields exclusively belonging to the nation. From each of these two fields,
the nation and the State, as the case ma} 7 be, is excluded as a lawgiver.
Now, this must apply as well to the system of law to which the sov-
ereign succeeds as to that which it immediately creates ; to the com-
mon or civil law as well as to that which comes from its own legislative
or judicial will. In other words, the State or nation, having no power
to give law in the fields exclusively belonging to the other, logically,
can have succeeded to no law applicable to such fields. Neither can
have a common law or a civil law within fields to which it can extend
no law at all.
But the contention is that, the lawgiving power being divided
topically between State and nation by the Constitution, each of the
participants is both the rightful current lawgiver, and the rightful
successor to the common law, in the specific field apportioned to it;
from which it would follow that the common law, like its own legis-
lation, is prescribed by the State as a rule of civil conduct within
the field of powers belonging to the State, and by the nation within
the field of powers belonging to the nation. In other words, that the
common law or civil law, as the case may be, prevails everywhere,
and on every subject, but the source of the command is national or
State according to the line of demarkatiou between the fields of
power of the nation and State. This premise accepted, it would
follow that the nation, having power to regulate interstate commerce,
has succeeded within that field, as sovereign and lawgiver, to the
commands embodied in the common law, and that within that field
the common law, attributable to the nation, as sovereign, is in force.
The error, if there be any, is in the assumption of the premise. It
is true that the State has, by succession or adoption, prescribed the
common law to its citizens upon subjects within the field of power of
the State. Whether the common law would prevail within the State
in the absence of express adoption by statute, it is not now neces-
sary to discuss. It is true, also, that upon subjects wholly beyond
that field the State can prescribe no such rules of conduct. But it is
not necessarily true that within its field of mere power the nation has
succeeded to or adopted any code of laws as rules of civil conduct,
except those to be found in its legislation. There is no express
adoption of any system of laws by the Constitution or by statute,
and the theory of the national government does not necessarily imply
that it, as sovereign, succeeds to any system of laws. The inquiry
is one of fact, rather than speculation, and is to be solved by the
intendments of the Constitution. The inquiry is whether the. Con-
stitution contemplated that within its field of power the nation should
succeed, as sovereign, to the common law. or whether, within that
SECT. III.] SWIFT V. PHILADELPHIA <fc READING RAILROAD CO. 119
field, no law should be prescribed by the nation, except by express
or implied enactment.
It is plain to me that, so far as the nation is coterritorial with the
States, the latter was intended. The great bulk of governmental
regulation was meant to be left to the States. The field of power
conferred upon the nation, outside of that essential to its functions
and defence as a nation among nations, is principally a field of bare
power. Over this field of bare power, unenforced by congressional
enactment, the powers of the State overlap. In these fields of bare
power there are two sovereigns, — the State until the nation acts, the
nation only after it acts. Out of this has grown up the doctrine of
concurrent jurisdiction, now too firmly fixed to be debated, much
less denied. Thus, notwithstanding the power of Congress to estab-
lish uniform laws on the subject of bankruptcy, or to fix the standard
of weights and measures, or to regulate interstate commerce, the
States have, in the absence of national laws in enforcement of these
powers, been permitted to establish their own systems of bank-
ruptcy, their own standards of weights and measures, and their own
regulation of the great multitude of incidents to interstate commerce.
It is settled constitutional law that over these fields, in the absence
of congressional enactment, the laws of the State — both those that
grow out of legislation and those that have come over from the com-
mon law — are the law of the land. And thus it is that largely
within the field of even the express powers of the nation, the laws of
the State have the primary place, and are only excluded when Con-
gress so wills by express legislative enactment.
Now, what consequences follow if it be assumed that there is a
common law of the nation, — rules of civil conduct prescribed by the
nation in all fields of its constitutional power? The legislature of
Illinois has adopted the common law, so far as it is applicable and
of a general nature, and all acts of the British Parliament made in
aid thereof prior to the fourth year of .lames the first, exclusive of
designated acts of Parliament. We may assume, for illustration,
that the common law of the United States, if their be such, within
the fields of bankruptcy, of standards of weights and measures, and
of interstate commerce, is definable in the same terms. There
exists, then, a common law of the United States over tin- subject-
matter of bankruptcies, standards of weights and measures, and com-
merce between the States, for laws relating to all of these subjects
had grown up and were well established in England prior to the
fourth year of the reign of .lames the First. Is Mich transplanted
jurisprudence the law of the United states? Have its mandates
been prescribed by the nation as rules of civil conduct? If so, how
is the held still left open to Stale legislation? By what authority
floes the State, in the face of auch existing national common law,
enact and enforce bankrupt and insolvenl law.-, ohange the standard
of weights and measures, and prescribe the multitude of regulation-
120 SWIFT V. PHILADELPHIA & READING RAILROAD CO. [CHAP, I.
that relate to commerce, interstate as well as intrastate? If there
be existing laws upon these subjects, referable to the nation as their
authority, would it not follow that all legislation of the State, within
these fields, is inoperative? There cannot be separate systems of
law over the same subject-matter and the same territory, emanating
from separate sources of authority. If the nation already has a sys-
tem, and such system is within its field of power, the State cannot
invade that field to change or modify it. The State could as effec-
tively repeal or alter an act of Congress relating to bankruptcies or
commerce between the States as repeal or alter the nation's common
law touching these subjects, if there be such; for such common law
would, until changed by Congress, be the existing mandate of the
nation upon those subjects. The proposition contended for would
exclude at once the whole conception of concurrent jurisdiction, and
leave the State without any power upon any subject concerning
which Congress was, under the Constitution, authorized to legislate.
It would break down at one stroke the vast and important legislation
of the States, that has universally been recognized and enforced as
the law of the land, but that occupies fields within the bare power of
congressional legislation. It would require the nation, at once, to
enter upon what it has never yet attempted, except as the imperative
emergency arose, namely, a complete code of laws upon every pos-
sible subject within its constitutional powers, where the provisions
of the common law had become antiquated or burdensome. If the
nation has already prescribed the common law upon subjects within
the field of its power, the States are thereby excluded, and the whole
doctrine of concurrent jurisdiction is not only without logical basis,
but is practically and inherently impossible.
An argument even stronger than these consequences to a settled
judicial interpretation of the Constitution is found in the letter of
the Constitution itself. To no one more than to the framers of that
instrument was it apparent that two systems of law upon the same
subject, from different governmental authorities, could not harmoni-
ously exist. One system or the other must be regarded as supreme.
Hence, it was provided (article 6) "that the Constitution, and the
laws of the United States which shall be made in pursuance thereof,
and all treaties made or which shall be made, under the authority of
the United States shall be the supreme law of the land . . . any-
thing in the Constitution or laws of any State to the contrary
notwithstanding." Observe what is made the supreme law: The
Constitution, the laws which shall be made in pursuance thereof,
and all treaties made, or which shall be made. If, under the Con-
stitution, the nation adopted or succeeded to the common law of
England, as the law of the land, within the field of national power,
why should there have been no mention of such common law as a
part of the supreme, law of the land ? Why should it "be exposed,
any more than the Constitution, or the acts of Congress thereafter
SECT. III.] SWIFT V. PHILADELPHIA & READING RAILROAD CO. 121
made, to the attack or modification of the States? Treaties arc nec-
essarily made laws of the nation, and, hence, the existing treaties
were made inviolate against State intrusion. Why should the then
existing laws, introduced into the system as continuing laws, share
a different fate? Was it contemplated that the rules of civil conduct
prescribed to the citizen by the nation, through the supposed body
of the common law, should be rules only so long as the States per-
mitted? If a national common law prevails, it is by virtue of the
Constitution. Can any reason be assigned why acts of Congress
were made supreme, while this supposed act of the Constitution was
left subservient?
The new government, for obvious reasons, was compelled to ob-
serve its treaties, but, excepting these, it seems plain to me that
the framers of the Constitution contemplated a government whose
beginnings were there and then, and whose commands to the citizen
must be found in the letter of the Constitution, or the laws thereafter
promulgated. The great bulk of authority was left with the States.
Each of these had already existing laws that covered the body of
ordinary current affairs. The nation was not devised to give law
upon these affairs. It was invested with a field of vast power, but
only to be entered as the needs of nationality from time to time gave
rise. No national common law was necessary. The subjects upon
which common law acted were principally left to the States, and
there it already existed. It was apparent that, as rapidly as the
nation was called upon to enter upon its fields of otherwise bare
power, Congress could supply the laws needed.
But, it is urged, the Supreme Court has invariably recognized the
existence of general law, according to which its administration of
justice has proceeded. Thus, for instance, in an action for damages
growing out of negligence, within the boundaries of Ohio, the Supreme
Court of the United States held the engineer and fireman of a loco-
motive, running alone, and without any train attached, to be fellow
servants (Railroad Co. v. Baugh, 149 U. S. 368), while a long line
of decisions of the Supreme Court of the State held they were not.
So, too, the Supreme Court of the United States held that the payee
or indorsee of a bill, upon its presentment to the drawee, and his
refusal to accept, had the right t«> 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<S38. I do
not propose to go through it at length, but I will ask you to consider
simply certain principal epochs in the correspondence from which, as
it appears to me, we derive considerable light as to the intentions of
the appellant.
In the first place, 1 turn to a letter written by the appellant on the
26th of September, 1837, three months after the appellant and his
wife had come to Scotland. He is writing from Minto Street, Edin-
burgh, to his brother-in-law, Mr. William Hosaek, in Jamaica, and
he says: "I have not got rid of my complaint as yet, and still find
difficulty in walking much, and was obliged to forego the pleasures
of shooting, on which I had so much set my heart. This country is
far too cold for a person not having the right use of his limbs. In
fact I have been little taken with anything, and would go to Canada.
Jamaica, or Australia, without hesitation. I enjoy the fresh butter
and gooseberries." 'Of the latter — that is, of the gooseberries — he
proceeds to state some evil consequences which lie had suffered, and
then he says: "Everything else is as good, or has an equivalent
fully as good, in Jamaica. .My mind is not made up as to the pur-
chase of an estate. Land bears too high a value in proportion to
other things in this country, owing to the members of the House of
Commons and of Lords being all landowners, and having thereby
received greater legislative protection. The reform voters begin
to see this, and as soon as the character of the House of Commons
changes enough (and it is changing prodigiously) the value of land
150 BELL V. KENNEDY. [CHAP. IL
will come to its true value in the State. I have formed these views
since I came home, and have lost in proportion my land-buying
mania." Thus, having, as I have stated, a domicile by birth in
Jamaica, and having come to this country with an indeterminate
view as to what property he should become the purchaser of, writing
three months afterwards, he says: "I have been little taken with
anything, and would go to Canada, Jamaica, or Australia, without
hesitation." Nothing can be more significant as to the absence of
any determination in his mind to make Scotland his fixed home, and
to spend the remainder of his days there.
I come to the 27th of December, 1837, when the appellant, again
writing to the same brother-in-law in Jamaica, says: "As to the
country, I like none of it. I have not purchased an estate, and not
likely to do so. I had my guns repaired, bought a pointer, pur-
chased the shooting of an estate for £10, have never been there, nor
fired a shot anywhere else. Have had a fishing rod in my hands only
for two hours, and caught nothing. I bought a horse, and might as
well have bought a bear. He bites so, it would have been as easy
to handle the one as the other. I exchanged him for a mare, and,
positively, I have sent her to enjoy herself in a farm straw yard,
without ever having been once on her back, or even touched her in
anyway." Here, again, we find that so far from his expressing a
liking for the country upon better acquaintance, he says he does not
like it, and so far from a detennination to purchase an estate in
Scotland and end his days upon it, he says, "I have not purchased
an estate, and am not likely to do so."
Passing over three months more, I come to a letter dated the 20th
of March, 1838, by Mrs. Bell, the wife's expressions being even
more significant than those of her husband; for it is obvious that
she, of the two, was more inclined to settle in Scotland. She writes:
"The extreme severity of the winter has put us a good deal out of
conceit of Scotland, but independent of that, I don't find the satis-
faction in it I anticipated. If circumstances permitted, I would not
mind to return to Jamaica, though, I dare say, after being here a
few years I might not like it. This country is so gloomy, it is sadly
depressing to the spirits, so unlike what one has been used to in
dear, lovely Jamaica. The vile pride and reserve of the people is
here too great a source of annoyance. A man is not so much valued
on the manners and education of a gentleman as on the rank of his
great grandfather — that is to say, among a certain class. You will
perceive from this we are still at Number 9. Bell has several prop-
erties in view, but is as undetermined about where we may settle as
when he left Jamaica. Next week he goes to Ayrshire to look at an
estate, and from thence to Galloway and Dumfriesshire. If we don't
fix very soon we purpose taking a furnished house in the country for
twelve months." Now, the whole of this passage, I think, is of con-
siderable importance, but the last sentence I have read affords a key
SECT. I.] BELL V. KENNEDY. 151
which may be useful iu letting us into the design of the spouses in
taking the furnished house of Trochraigue. The interpretation given
by this letter is, that it was equivalent to saying that they had not
at that time fixed upon a residence.
I pass on for two mouths more. The offer which in the interval he
had made for Euterkine had been refused. The furnished house at
Trochraigue had been taken. The appellant and his wife were upon
the eve of taking possession of it on the 1st of June, 1838; and on
the 28th of May, 1838, the appellant writes to bis brother-in-law in
Jamaica: "I have taken a country house at Trochrigg." " I leave
this for it on the 1st of June. It is situated two miles from Girvan,
which is twenty miles west of Ayr, on the seacoast. Therefore for
the next twelve months you cau address to me Trochrigg, near
Girvan, Ayrshire, Scotland. The offer which I wrote you I have
made for Enterkine I received no answer to until sixteen days after,
and then I got an answer stating they had a better offer. Of this I
believe as much as I like, for I see it advertised again in the Satur-
day's paper. I do not know whether I shall make anything of this
estate for the present, and I care not. It is still very cold, and if
I do not make a purchase in the course of this year, I perhaps will
take a trip next summer to the south of France, and see whether I
don't find it warmer there." That is to say in the next summer,
which would be the summer of 1839, he was in expectation that Mrs.
Bell and his family would be able to accompany him to "take a trip
to the south of France, and see whether he did not find it warmer
there," not, as it seems to me, for the purpose of enjoying a tempo-
rary sojourn, but, if he found it a more agreeable climate, for the
purpose of making it his permanent residence.
There is only one other passage to which I would ask your Lord-
ships' attention. It is in a letter written one month afterwards,
while Mr. and Mrs. Bell were at Trochrigg, on the 16th of June.
Writing to Mr. William Hosack, the appellant says: " There are
several gentlemen's seats in the neighborhood, but none of them
reside in them. We will probably have only three or four acquaint-
ances, and shall be, in that respect, much the same as in Jamaica.
We must, however, make the most of it for twelve months, in the
hope that during that time I may be able to find some estate that will
be suitable for me as a purchase."
Ifind nothing after this material in the correspondence before the
death of Mrs. Bell, and the last sentence I have read appears tome
to sum up and to describe most accurately the position in which the
appellant was at Trochrigg; lie was there in the hope that, during
the "twelve months," lie might be able to find some estate which
might be suitable to him for purchase; but upon that contingency,
as it seems to me, depended the ultimate choice which he would
make of Scotland, or some oilier country, as a place of residence.
If his hope should be realized, we mighl from this letter easily infer
152 BELL V. KENNEDY. [CHAP. II.
that Scotland would become his home. If his hope should not be
realized, I see nothing which would lead me to think, but everything
which would lead me to doubt, that he would have elected to remain
in Scotland as his place of residence.
It appears to me, on the whole, upon consideration of the facts
which are admitted in the case, and the parol evidence, and the
correspondence to which I have referred, that so far from the respon-
dents having discharged the onus which lies upon them to prove the
adoption of a Scotch domicile, they have entirely failed in discharg-
ing that burden of proof, and that the evidence leads quite in the
opposite direction. There is nothing in it to show that the appel-
lant's personal status of domicile as a native and an inhabitant of
Jamaica has been changed on coming here by that which alone could
change it, his assumption of domicile in another country. I am,
therefore, unfortunately unable to advise you to concur in the opin-
ion of the Court of Session. The Lord Ordinary entertained the
opinion that the appellant, from the first moment of his arrival in
Scotland, and of his sojourn at Mrs. Hosack's house, had acquired a
Scotch domicile. But nothing could be more temporary — nothing
more different from the state cf things that would lead to the con-
clusion of the assumption of a Scotch domicile — than the circum-
stances under which that sojourn took place. Lord Cowan, in
delivering the opinion of the Court of Session, appears, on the other
hand, to have thought that the Scotch domicile was not acquired at
the time of arrival in Scotland, but was acquired at the time of tak-
ing possession of Trochrigg. But if we are to put upon the occupa-
tion of Trochrigg the interpretation which the appellant himself put
upon it at the time, so far from its being an assumption of a Scotch
domicile, it appears to me to have borne an entirely different con-
struction, and to have been a temporary place of sojourn, in order
that a determination might be arrived at in the course of the sojourn
as to whether a Scotch domicile should or should not ultimately be
acquired.
There is one passage in the judgment of the Court of Session,
delivered by Lord Cowan, to which I must ask your Lordships more
particularly to refer, for it appears to me to afford a key to what I
think, with great respect, I must call the fallacious reasoning of the
judgment. After speaking of the parol evidence given by the appel-
lant, Lord Cowan uses these words: "For after all, what do the
statements of the defender truly amount to? Simply this, that prior
to September, 1838, he had not fixed on any place of permanent resi-
dence, and had not finally made up his mind or formed any fixed
intention to settle in Scotland before he bought Enterkine. There
is no statement that he had it in his mind to take up his residence
elsewhere than in Scotland." If, my Lords, I read these words cor-
rectly, Lord Cowan appears to have intimated that in his opinion it
would not be enough to find that the appellant had not fixed on any
3ECT. I.] BELL V. KENNEDY. 153
place of permanent residence prior to September, 1838, and had not
decidedly made up hu; mind or formed a fixed intention to settle in
Scotland, unless proof were also adduced that he had it in his mind
to take up his residence elsewhere than in Scotland. I venture to
think that would be an entirely fallacious mode of reasoning, and
would be entirely shifting the position of the proof which has to be
brought forward. The question, as it seems to me, is not whether
he had made up his mind to take up his residence elsewhere than
in Scotland, but the question is, had he, prior to September, 1838,
finally made up his mind or formed a fixed intention to settle in
Scotland. Lord Cowan appears to admit that the parol evidence
itself would show that that had not been done, and that parol evi-
dence is, in my mind, fortified and made very much more emphatic
by the evidence of the correspondence to which I have referred.
I have humbly, therefore, to advise your Lordships to assoilzie the
defender from the conclusions of the summons, and to reverse the six-
teen interlocutors which have been pronounced by the court below.
Lord Westbury. My Lords, I have very few words to add to
what has been already stated to your Lordships ; and, perhaps, even
those are not quite necessary.
What appears to me to be the erroneous conclusion at which the
Court of Session arrived is in great part due to the circumstance,
frequently lost sight of, that the domicile of origin adheres until a
new domicile is acquired. In the argument, and in the judgments,
we find constantly the phrase used that he had abandoned his native
domicile. That domicile appears to have been regarded as if it had
been lost by the abandonment of his residence in Jamaica. Now,
residence and domicile are two perfectly distinct things. It is nec-
essary in the administration of the law that the idea of domicile
should exist, and that the fact of domicile should be ascertained, in
order to determine which of two municipal laws may be invoked for
the purpose of regulating the rights of parties. We know very well
that succession and distribution depend upon the law of the domi-
cile. Domicile, therefore, is an idea of law. It is the relation
which the law creates between an individual and a particular locality
or country. To every adult person the law ascribes a domicile, and
that domicile remains his fixed attribute until a new and different
attribute usurps its place. Now this case was argued at the bar on
the footing, that as soon as Mr. Bell left Jamaica he had a settled
and fixed intention of taking up his residence in Scotland. And if,
indeed, that had been ascertained as a fact, then you would have had
the animus of the party clearly demonstrated, and the factum, which
alone would remain to be proved, would in fact be proved, or, at
least, would result immediately upon his arrival in Scotland.
The true inquiry, therefore, is. Had he this settled purpose, the
moment he left Jamaica, or in coins. • of the voyage, of taking up a
154 BELL V. KENNEDY. [CHAP. II.
fixed and settled abode in Scotland? Undoubtedly, part of the
evidence is the external act of the party; but the only external act
we have here is the going down with his wife to Edinburgh, the
most natural thing in the world, to visit his wife's relations. We
find him residing in Scotland from that time; but with what animus
or intention his residence continued there we have yet to ascertain.
For although residence may be some small prima facie proof of
domicile, it is by no means to be inferred from the fact of residence
that domicile results, even although you do not find that the party
had any other resideuce in existence or in contemplation.
I take it that Mr. Bell may be more properly described by words
which occur in the Digest; that when he left Jamaica he might be de-
scribed as qucerens, quo se conferat, atque ubi constituat domicilium.
Di°. lib. 50 t. 1, 27. Where he was to fix his habitation was to him at
that time a thing perfectly unresolved ; and, as appears from the letters
which your Lordships have heard, that irresolution, that want of settled
fixitv of purpose, certainly continued down to the time when he actu-
ally became the purchaser of Enterkine. But the punctum temporis
to which our inquiries are to be directed as to Mr. Bell's intention
is of an earlier date than that. The question is, had he any settled
fixed intention of being permanently resident in Scotland on the 28th
of September, 1838? I quite agree with an observation which was
made in the Court of Session, that the letters are the best evidence
in the case. To those letters your Lordships' attention has been
directed, and whether you refer to the language of the wife's letters,
or look exclusively at the language of the husband's letters written
to his familiar friends or his relatives whom he had left in Jamaica,
it is impossible to predicate of him that he was a man who had a
fixed and settled purpose to make Scotland his future place of resi-
■ deuce, to set up his tabernacle there, to make it his future home.
And unless you are able to show that with perfect clearness and
satisfaction to yourselves, it follows that the domicile of origin con
tiuues. And therefore I think we can have no hesitation in answer-
ing the question where he was settled on the 28th of September. It
must be answered in this way; he was resident in Scotland, but
without the animus manendi, and therefore he still retained his domi-
cile of origin.
My Lords, it is matter of deep regret, that although it might
have been easily seen from the commencement of this cause that it
turned entirely upon this particular question, yet we find that ten
years of litigation have taken place, with enormous expense, and an
enormous amount of attention to a variety of other matters, which
would have been wholly unnecessary if judicial attention had been
concentrated upon this question, which alone was sufficient for the
decision of the case. 1
i Ace. Ennis v. Smith, 14 How. 400 ; Mitchell v. U. S., 21 Wall. 350 ; Hartford
v. Champion, 58 Conn. 268, 20 Atl. 471 ; Wilkins v. Marshall, 80 111. 74 ; Astley v.
6ECT. I.J UDNY V. UDNV. 155
UDNY v. UDNY.
House of Lords. 1869.
[Reported Law Reports, 1 House of Lords (Scotch), 441.]
The late Colonel John Robert Fullerton Udny, of Udny, In the
county of Aberdeen, though born at Leghorn, where his father was
consul, had by paternity his domicile in Scotland. At the age of fif-
teen, in the year 1794, he was sent to Edinburgh, where he remained
for three years. In 1797 he became an officer in the Guards. In
1802 he succeeded to the family estate. In 1812 he married Miss
Emily Fitzhugh, — retired from the army, — aud took upon lease a
house in London, where he resided for thirty-two years, paying occa-
sional visits to Aberdeenshire.
In 1844, having got into pecuniary difficulties, he broke up his
establishment in London aud repaired to Boulogne, where he re-
mained for nine years, occasionally, as before, visiting Scotland.
In 1846 his wife died, leaving the only child of her marriage, a son,
who, in 1859, died a bachelor.
Some time after the death of his wife Colonel Udny formed at
Boulogne a connection with Miss Ann Allat, which resulted in the
birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son,
the above respondent, whose parents were undoubtedly unmarried
when he came into the world. They were, however, united after-
wards in holy matrimony at Ormistou, in Scotland, on the 2d of
January, 1854, and the question was whether the respondent, under
the circumstances of the case, had become legitimate per subsequet/s
matrimonium.
The Court of Session (First Division) on the 14th of December,
1866, 3d Series, vol. v. p. 164, decided that Colonel Udny's domi-
cile of origin was Scotch, and that he had never altered or lost it,
notwithstanding his long absences from Scotland. They therefore
found that his son, the respondent, "though illegitimate at his birch,
was legitimated by the subsequent marriage of his parents." Hence
this appeal, which the House regarded as involving questions of
greatly more than ordinary importance.
Lord AVestbury. l The law of England, and of almost all civilized
countries, ascribes to each individual at his birth two distinct
Cnpron, 89 Ind. 167 ; Otis v. Boston, 12 Cush. 44 ; DeMeli v. DeMeli, 120 N. Y. 485,
24 N. E. 996 ; Guier v. O'Daniel, 1 Bin. 349 n. ; Pilson v. Bushong, 29 Grat. 229 ;
Kellogg v. Winnebago County, 42 Wis. '.'7.
Conversely, the mere inteiil to acquire a new domicile without physical presence atthe
new place will not change the domicile. G Isof Raffenel, •". Sw.&Tr. 49; ZhreMar-
rett, 36 Ch. Div. 400 ; Talmadge '•. Talmadge, 66 Am. L99 ; Carter v. Sommenneyer,
•J7 Wis. 665; de Champagny'a Appeal (French Cassation), Dalloz, 187f>, 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<vl and peisonal estate within this
State, and all personal estate of persons residing in this State, and of all
corporations organized under the laws of this State, whether the prop-
erty be in or out of this State, . . . shall be subject to taxation, unless
the same be exempt from taxation by the Constitution, and shall be
assessed at its fair cash value, estimated at the price it would bring at
a fair voluntary sale."
That the property taxed is within this description is beyond contro-
versy. The constitutionality of the section was attacked not only upon
the ground that it denied to the Transit Company due process of law,
but also the equal protection of the laws, in the fact that railroad com-
panies were only taxed upon the value of their rolling stock used within
the State which was determined by the proportion which the number of
miles of the railroad in the State bears to the whole number of miles
operated by the company.
The power of taxation, indispensable to the existence of every civil-
ized government, is exercised upon the assumption of an equivalent
rendered to the taxpayer in the protection of his person and property, in
adding to the value of such property, or in the creation and maintenance
of public conveniences in which he shares, such, for instance, as roads,
bridges, sidewalks, pavements, and schools for the education of his chil-
dren. If the taxing power be in no position to render these services, or
otherwise to benefit the person or property taxed, and such property be
wholly within the taxing power of another State, to which it may be said
to owe an allegiance and to which it looks for protection, the taxation
of such property within the domicil of the owner partakes rather of the
nature of an extortion than a tax, and has been repeatedly held by this
court to be beyond the power of the legislature and a taking of property
without due process of law. Railroad Company v. Jackson, 7 Wall.
262; State Tax on Foreign-held Bonds, 15 Wall. 300; Tappan v.
Merchants' National Bank, 19 Wall. 490, 499 ; Delaware &c. R. R.
Co. v. Pennsylvania, 198 U. S. 341, 358. In Chicago &c. R. R. Co. v.
Chicago, 166 U. S. 226, it was held, after full consideration, that the
taking of private property without compensation was a denial of due
sect.h.] union transit co. v. Kentucky. 26
o
process within the Fourteenth Amendment. See also Davidson v. New
Orleans, 96 U. S. 97, 102; Missouri Pacific Railway v. Nebraska, 164.
1. S. 403, 417 ; Mount Hope Cemetery v. Boston, 158 Mass. 509, 519.
Most modern legislation upon this subject has been directed (1) to
the requirement that every citizen shall disclose the amount of his prop-
erty subject to taxation and shall contribute in proportion to such
amount ; and (2) to the voidance of double taxation. As said by Adair.
Smith in his •• Wealth of Nations," Book V., Ch. 2, Ft. 2, " the sub-
jects of every State ought to contribute towards the support of the gov-
ernment as nearly as possible in proportion to their respective abilities ;
that is. in proportion to the revenue which they respectively enjoy
under the protection of the State. The expense of government to the
individuals of a great nation is like the expense of management to the
joint tenants of a great estate, who are all obliged to contribute in pro-
portion to their respective interest in the estate. In the observation
or neglect of this maxim consists what is called equality or inequality
of taxation.''
But notwithstanding the rule of uniformity lying at the basis of
every just system of taxation, there are doubtless many individual
cases where the weight of a tax falls unequally upon the owners of
the property taxed. This is almost unavoidable under every system
of direct taxation. But the tax is not rendered illegal by such discrim-
ination. Thus every citizen is bound to pay his proportion of a
school tax, though he have no children ; of a police tax, though he have
no buildings or personal property to be guarded ; or of a road tax,
though he never use the road. In other words a general tax cannot be
dissected to show that, as to certain constituent parts, the taxpayer re-
ceives no benefit. Even in case of special assessments imposed for the
impiovement of property within certain limits, the fact that it is ex-
tremely doubtful whether a particular lot can receive any benefit from
the improvement does not invalidate the tax with respect to such lot.
Kelly v. Pittsburgh 104 U. S. 78 ; Ainesbury Naii Factory Co. v.
Weed, 17 Mass. 53; Thomas v. Gay, 169 U. S. 264; Louisville &c.
R. R. Co. v. Barber Asphalt Co. 197 U. S. 430. Subject to these in-
dividual exceptions, the rule is that in classifying property for taxation
some benefit to the property taxed is a controlling consideration, and a
plain abuse of this power will sometimes justify a judicial interference.
Norwood v. Baker, 172 U. S. 269. It is often said protection and
payment of taxes are correlative obligations.
It is also essential to the validity of a tax that the property shall be
within the territorial jurisdiction of the taxing power. Not only is
the operation of State laws limited to persons and property within the
boundaries of the State, but property which is wholly and exclusivelv
within the jurisdiction of another State, receives none of the protec-
tion for which the tax is supposed to be the compensation. This rule
receives its most, familiar illustration in the case9 of land which, to
be taxable, must be within the limits of the State. Indeed, we know
264
UNION TRANSIT CO. V. KENTUCKY. [CHAP. II.
of no case where a legislature has assumed to impose a tax upon land
within the jurisdiction of another State, much less where such action
has been defended by any court. It is said by this court in the
Foreign-held Bond Case, 15 Wall. 300, 319, that no adjudication
should be necessary to establish so obvious a proposition as that
property king beyond the jurisdiction of a State is not a subject
upon which her taxing power can be legitimately exercised.
The argument against the taxability of land within the jurisdiction
of another State applies with equal cogency to tangible personal prop-
erty beyond the jurisdiction. It is not only beyond the sovereignty of
the taxing State, but does not and cannot receive protection under its
laws. True, a resident owner may receive an income from such
property, but the same may be said of real estate within a foreign
jurisdiction. Whatever be the rights of the State with respect
to the taxation of such income, it is clearly beyond its power to tax
the land from which the income is derived. As we said in Louisville
&c. Ferry Co. v. Kentucky, 188 U.S., 385, 396: "While the mode,
form, and extent of taxation are, speaking generally, limited only by
the wisdom of the legislature, that power is limited by principle in-
hering iu the very nature of constitutional government, namely, that
the taxation imposed must have relation to a subject within the jurisdic-
tion of the taxing government." See also McCulloch v. Maryland, 4
Wheat. 316, 429; Hays v. Pacific Mail S. S. Co., 17 How. 596, 599 ;
St. Louis v. Ferry Co., 11 Wall. 423, 429, 431 ; Morgan v. Parham,
16 Wall. 471, 476.
Respecting this, there is an obvious distinction between the tangible
and intangible property, in the fact that the latter is held secretly ;
that there is no method by which its existence or ownership can be
ascertained in the State of its situs, except perhaps in the case of
mortgages or shares of stock. So if the owner be discovered, there is
no way by which he can be reached by process in a State other than
that of his domicil, or the collection of the tax otherwise enforced.
In this class of cases the tendency of modern authorities is to apply the
maxim mobilia sequuntur personam, and to hold that the property may
be taxed at the domicil of the owner as the real situs of the debt, and
also, more particularly in the case of mortgages, in the State where
the property is retained. Such has been the repeated rulings of this
court. Tappan v. Merchants' National Bank. 19 Wall. 490; Kirtland
v. Hotchkiss, 100 U. S. 491 ; Bonaparte v. Tax Court. 104 U. S. 592;
Sturgis v. Carter, 114 U. S. 511; Kidd v. Alabama, 188 U. S. 730;
Blackstone v. Miller, 188 U. S. 189.
If this occasionally results in double taxation, it muchoftener happens
that this class of property escapes altogether. In the case of intangible
property, the law does not look for absolute equality, but to the much
more practical consideration of collecting the tax upon such property,
either in the State of the domicil or the situs. Of course, we do not,
enter into a consideration of the question, so much discussed by polit'
.SECT. II.] UNION TRANSIT CO. V. KENTUCKY. 265
ical economists, of the double taxation involved in taxing the property
from which these securities arise, and also the burdens upon such prop-
erty- such as mortgages, shares of stock and the like — the securities
themselves.
The arguments in favor of the taxation of intangible property at the
domicil of the owner have no application to tangible property. The
fact that such property is visible, easily found and difficult to conceal,
and the tax readily collectible, is so cogent an argument for its taxa-
tion at its situs, that of late there is a general consensus of opinion
that it is taxable in the State where it is permanently located and em-
ployed, and where it receives its entire protection, irrespective of the
domicil of the owner. We have, ourselves, held in a number of cases
that such property permanently located in a State other than that' of
its owner is taxable there. Brown v. Houston, 114 U. S. 622 ; Coe v.
Errol, 11G U. S. 517 ; Pullman's Car Co. v. Pennsylvania, 141 U. S. 18 ;
Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530 : Rail-
road Company v. Peniston, 1* Wall. 5 ; American Refrigerator Transit
Company v. Hall, 174 U. S. 70; Pittsburgh Coal Company v. Bates,
156 U. S. 577 ; Old Dominion Steamship Company v. Virginia, 198
I". S. 299. We have also held that, if a corporation be engaged in
running railroad cars into, through, and out of the State, and having at
all times a large number of cars within the State, it may be taxed by
taking as the basis of assessment such proportion of its capital stock as
the number of miles of railroad over which its cars are run within the
State bears to the whole number of miles in all the States over which
its cars are run. Pullman's Car Co. v. Pennsylvania, 141 U. S. 18.
There are doubtless cases in the State reports announcing the prin-
ciple that the ancient maxim of mobilia sequuntur personam still
applies to personal property, and that it may be taxed at the domicil
of the owner, but upon examination they all or nearly all relate to
intangible property, such as stocks, bonds, notes, and other choses in
action. We are cited to none applying this rule to tangible property,
and after a careful examination have not been able to find any wherein
the question is squarely presented, unless it be that of Wheaton v.
Mickel, 63 N. J. Law. 525, where a resident of New Jerse}' was taxed
for certain coastwise and seagoing vessels located in Pennsylvania. It
did not appear, however, that they were permanently located there.
The case turned upon the construction of a State statute, and the ques-
tion of constitutionality was not raised. If there are any other cases
holding that the maxim applies to tangible personal property, they are
wholly exceptional, and were decided at a time when personal property
was comparatively of small amount, and consisted principally of stocks
in trade, horses, cattle vehicles, and vessels engaged in navigation.
But in view of the enormous increase of such property since the in-
troduction of railways and the growth of manufactures, the tendency
has been in recent years to treat it as having a situs of its own for
the purpose of taxation, and correlatively to exempt at the domicil of
9(36 UNION TRANSIT CO. V. KENTUCKY. [dlAP. II.
Its owner. The cases in the State reports upon this subject usually
turn upon the construction of local statutes granting or withholding the
right to tax extra-territorial property, and do not involve the constitu-
tional principle here invoked. Many of them, such, for instance, as
Blood v. Sayre, 17 Vt. 609; Preston v. Boston, 12 Pickering, 7;
Pease v. Whitney, 8 Mass. 93; Gray v. Kettel, 12 Mass. 161, turn
upon the taxability of property where the owner is located in one,
and the property in another, of two jurisdictions within the same State,
sometimes even involving double taxation, and are not in point here.
One of the most valuable of the State cases is that of Hoyt v.
Commissioners of Taxes, 23 N. Y. 224, where, under the New York
statute, it was held that the tangible property of a resident actually
situated in another State or country was not to be included in the as-
sessment against him. The statute declared that "all lands and all
personal estate within this State " were liable for taxation, and it was
said in a most instructive opinion by Chief Justice Comstock that the
language could not be obscured by the introduction of a legal fiction
about the situs of personal estate. It was said that this fiction involved
the necessary consequence 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 ; " and that the maxim mobilia sequuntur
personam may only be resorted to when convenience and justice so re-
quire. The proper use of legal fiction is to prevent injustice, accord-
ing to the maxim "in fictione juris semper cequitas existat." See
Eidman v. Martinez, 184 U. S. 578; Blackstone v. Miller, 188 U. S.
189, 206. " 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 a general rule of law." The
opinion argues with great force against the injustice of taxing extra-
territorial property, when it is also taxable in the State where it is lo-
cated. Similar cases to the same effect are People v. Smith, 88 N. Y.
576 ; City of New Albany v. Meekin, 3 Indiana, 481 ; Wilkey v. City of
Pekin, 19 Illinois, 160 ; Johnson v. Lexington, 14 B. Monroe, 521 ;
Catlin v. Hull, 21 Vermont, 152 ; Nashua Bank v. Nashua, 46 N. H.
389.
In Weaver's Estate v. State, 110 Iowa, 328, it was held by the Su-
preme Court of Iowa that a herd of cattle within the State of Mis-
souri belonging to a resident of Iowa, was not subject to an
inheritance tax upon his decease. In Commonwealth v. American
Dredging Company, 122 Penna. St. 386, it was held that a Penn-
sylvania corporation was taxable in respect to certain dredges
and other similar vessels which were built, but not permanently
retained outside of the state. It was said that the non-taxability of
tangible personal property located permanently outside of the State
was not "because of the technical principle that the situs of personal
property is where the domicil of the owner is found. This rule is
doubtless true as to intangible property, such as bonds, mortgages, and
SECT.II.] I'.MDN TRANSIT CO. V. KENTUCKY. -«''.
other evidences of debt. But the better opinion seems to be that it
does not hold in the case of visible tangible personal property perma-
nently located in another State. In such cases it is taxable within
ihe jurisdiction where found, and is exempt at the domicil of the
owner." The property in that case, however, was held not to be per-
manently outside of the State, and therefore not exempt from taxation.
The rule, however, seems to be well settled in Pennsylvania that so
much of the tangible property of a corporation as is situated in
another State, and there employed in its corporate business, is not
taxable in Pennsylvania. Commonwealth v. Montgomery &c. Mining
Co., 5 Pa. County Courts Rep. 89; Commonwealth v. Railroad Co.,
145 Pa. St. 96 ; Commonwealth v. Westinghouse Mfg. Co., 151 Pa. St.
21 5 ; Commonwealth v. Standard Oil Co., 101 Pa. St. 119. The rule is
the same in New York. Pacific Steamship Company v. Commissioners,
46 How. Pr. 315.
But there are two recent cases in this court which we think com-
pletely cover the question under consideration and require the reversal
of the judgment of the State court. The first of these is that of the
Louisville &c. Ferry Co. v. Kentucky, 188 U. S. 385. That was an
action to recover certain taxes imposed upon the corporate franchise
of the defendant company, which was organized to establish and main-
tain a ferry between Kentucky and Indiana. The defendant was also
licensed by the State of Indiana. We held that the fact that such
franchise had been granted by the Commonwealth of Kentucky did
not bring within the jurisdiction of Kentucky for the purpose of tax-
ation the franchise granted to the same company b}' Indiana, and
which we held to be an incorporeal hereditament derived from and
having its legal situs in that State. It was adjudged that such taxa-
tion amounted to a deprivation of property without due process of law,
in violation of the Fourteenth Amendment, as much so as if the State
taxed the land owned by that company ; and that the officers of the
State had exceeded their power in taxing the whole franchise without
makino- a deduction for that obtained from Indiana, the two being
distinct, "although the enjoyment of both are essential to a complete
ferry right for the transportation of persons and property across the
river both ways."
The other and more recent case is that of the Delaware &c. Rail-
road Co. v. Pennsylvania, 198 U.S. 311. That was an assessment
upon the capital stock of the railroad company, wherein it was con-
tended that the assessor should have deducted from the value of such
stock certain coal mined in Pennsylvania and owned by it. but stored
in New York, there awaiting Bale, and beyond the jurisdiction of the
commonwealth at the time appraisement was made. This coal was
taxable, and in fact was taxed in the State where it rested for the pur-
poses ofsale at the time when the appraisement in question was made.
Both this court and the Supreme Court of Pennsylvania had held that
a tax on the corporate stock is a tax on the assets of the corporation
208 UNION TRANSIT CO. V. KENTUCKY. [ CHAP. II.
issuing such stock. The two courts agreed in the general proposition
that tangible property permanently outside of the State, and having no
situs within the State, could not be taxed. But they differed upon the
question whether the coal involved was permanently outside of the
State. In delivering the opinion it was said: " However temporary
the stay of the coal might be in the particular foreign States where it
was resting at the time of the appraisement, it was definitely and for-
ever beyond the jurisdiction of Pennsylvania. And it was within the
jurisdiction of the foreign States for purposes of taxation, and in truth
it was there taxed. We regard this tax as in substance and in fact,
though not in form, a tax specifically levied upon the property of the
corporation, and part of that property is outside and beyond the juris-
diction of the State which thus assumes to tax it." The decision in that
case was really broader than the exigencies of the case under consider-
ation required, as the tax was not upon the personal property itself,
but upon the capital stock of a Pennsylvania corporation, a part of
which stock was represented by the coal, the value of which was held
should have been deducted.
The adoption of a general rule that tangible personal property in
other States may be taxed at the domicil of the owner involves possi-
bilities of an extremely serious character. Not only would it author-
ize the taxation of furniture and other property kept at countrj* houses
in other States or even in foreign countries, of stocks of goods and mer-
chandise kept at branch establishments when already taxed at the State
of their situs, but of that enormous mass of personal property belong-
ing to railways and other corporations which might be taxed in the
state where they are incorporated, though their charters contemplated
the construction and operation of roads wholly outside the State, and
sometimes across the continent, and when in no other particular they
are subject to its laws and entitled to its protection. The propriety
of such incorporations, where no business is done within the State, is
open to a grave doubt, but it is possible that legislation alone can
furnish a remedy.
Our conclusion upon this branch of the case renders it unnecessary
to decide the second question, viz : Whether the Transit Company was
denied the equal protection of the laws.
It is unnecessary to say that this case does not involve the question
of the taxation of intangible personal property, or of inheritance or
succession taxes, or of questions arising between different municipali-
ties or taxing districts within the same State, which are controlled by
different considerations.
We are of opinion that the cars in question, so far as the}' were
located and employed in other States than Kentucky, were not subject
to the taxing power of that commonwealth, and that the judgment ot
the Court of Appeals must be reversed, and the case remanded to that
court for further proceedings not inconsistent with this opinion.
Mb. Justice White concurred in tli£ result.
SECT. II.] NEW YORK CENTRA T, RAILROAD V. MILLER. 269
Mr. Justice Holmes : It seems to me that the result reached by the
court probably is a desirable one, but I hardly understand how it can
be deduced from the Fourteenth Amendment, and as the Chief Justice
feels the same difficulty, I think it proper to say that my doubt has
not been removed.
NEW YORK CENTRAL RAILROAD v. MILLER.
Supreme Court of the United States. 1906.
[Reported 202 U. S. 584.]
Holmes, J. These cases arise upon writs of certiorari, issued under
the State law and addressed to the State comptroller for the time being,
to revise taxes imposed upon the relator for the years 1900, 1901, 1902,
1903 and 1904 respectively. The tax was levied under New York Laws
of 1896, c. 908, § 182, which, so far as material, is as follows : " Franchise
Tax on Corporations. — Eveiy corporation . . . incorporated . . . under
. . . law in this State, shall pa}- to the State treasurer annually, an annual
tax to be computed upon the basis of the amount of its capital stock
employed within this State and upon each dollar of such amount," at
a certain rate, if the dividends amount to six per cent or more upon the
par value of such capital stock. " If such dividend or dividends amount
to less than six per centum on the par value of the capital stock [as was
the case with the relator], the tax shall be at the rate of one and one-half
mills upon such portion of the capital stock at par as the amount of cap-
ital employed within this State bears to the entire capital of the corpo-
ration." It is provided further by the same section that every foreign
corporation, etc., "shall pay a like tax for the privilege of exercising
its corporate franchises or carrying on its business in such corporate
or organized capacity in this State, to be computed upon the basis of
the capital employed by it within this State."
The relator is a New York corporation owning or hiring lines without
as well as within the State, having arrangements with other carriers for
through transportation, routing and rating, and sending its cars to points
without as well as within the State, and over other lines as well as its
own. The cars often are out of the relator's possession for some time,
and may be transferred to many roads successively, and even mav be
used by other roads for their own independent business, before thev
return to the relator or the State. In short, by the familiar course of
railroad business a considerable proportion of the relator's cars con-
stantly is out of the Stale, and on tins ground the relator contended
that that proportion should be deducted from its entire capital, in order
to find the capital stock employed within the State. This contention
the comptroller disallowed.
The writ of certiorari in the earliest case. No. 81, with the return set-
ting forth the proceedings of the comptroller, Knight, and the evidence
270 XEVT YOEK CENTRAL RAILROAD V. MTT.T.KR. [ciIAP.II.
given before him. was heard by the Appellate Division of the Supreme
Court, and a reduction of the amount of the tax was ordered. 75 App
Div. 169. On appeal the Court of Appeals ordered the proceedings to
be remitted to the comptroller, to the end that further evidence might
be taken upon the question whether any of the relator's rolling stock
was used exclusively outside of the State, with directions that if it should
be found that such was the fact the amount of the rolling stock so used
should be deducted. 173 X. Y. -255. On rehearing of No. 81 and with
it No. 82, before the comptroller, now Miller, no evidence was offered
to prove that any of the relator's cars or engines were used continuously
and exclusively outside of the State during the whole tax year. In the
later cases it was admitted that no substantial amount of the equipment
was so used during the similar period. But in all of them evidence was
offered of the movements of particular cars, to illustrate the transfers
which they went through before they returned, as has been stated, evi-
dence of the relator's road mileage outside and inside of the State, and
also evidence of the car mileage outside and inside of the State, in order
to show, on one footing or the other, that a certain proportion of cars,
although not the same cars, was continuously without the State during
the whole tax year. The comptroller refused to make any reduction
of the tax. and the case being taken up again, his refusal was affirmed
by the Appellate Division of the Supreme Court and by the Court of
Appeals on the authority of the former decision. 89 App. Div. 127 :
177 X. Y. 584. The later cases took substantially the same course.
The relator saved the questions whether the statute as construed was
Dot contrary to Article 1. § 8, of the Constitution of the United States,
as to commerce among the States; Article 1. § 10. against impairing
the obligation of contracts: Article 4, § 1, as to giving full faith and
credit to the public acts of other States : and the Fourteenth Amend-
ment. It took out writs of error and brought the cases here.
The argument for the relator had woven through it suggestions which
only tended to show that the construction of the New York statute by
the' Court of Appeals was wrong. Of course if the statute as construed
is valid under the Constitution, we are bound by the construction given
to it by the State court. In this case we are to assume that the statute
purports and intends to allow no deduction from the capital stock taken
as the basis of the tax. unless some specific portion of the corporate
property is outside of the State during the whole tax year. We must
assume, further, that no part of the corporate property in question
was outside of the State during the whole tax year. The proposition
really was conceded, as we have said, and the evidence that was
offered had no tendency to prove the contrary. If we are to suppose
that the reports offered in evidence were accepted as competent to
establish the facts which they set forth, still it would be going a very
great way to infer from car mileage the average number or proportion
of cars absent from the State. For. as was said by a witness, the reports
show only that the cars made so many miles, but it might be ten or it
' T. II.] XKW YOKE CENTRAL RAILROAD V. MILLER. 271
might be fifty cars that made them. Certainly no inference whatever
could be drawn that the same cars were absent from the State all the
time.
In view of what we have said it is questionable whether the relator
has offered evidence enough to open the constitutional objections urged
against the tax. But as it cannot be doubted, in view of the well-known
course of railroad business, that some considerable proportion of the
relators cars always is absent from the State, it would be unsatisfactory
to turn the case off with a merely technical answer, and we proceed.
The most salient points of the relator's argument are as follows : This
tax is not a tax on the franchise to be a corporation, but a tax on the
use and exercise of the franchise of transportation. The use of this cr
any other franchise outside the State cannot lie taxed by New York.
The car mileage within the State and that upon other lines without the
State afford a basis of apportionment of tue average total of cars contin-
uously employed by other corporations without the State, and the relator's
road mileage within and without the State affords a basis of apportion-
ment of its average total equipment continuously employed by it re-
spectively within and without the State. To tax on the total value within
and without is beyond the jurisdiction of the State, a taking of property
without due process of law, and an unconstitutional interference with
commerce among the States.
A part of this argument we have answered already. But we must go
further. We are not curious to inquire exactly what kind of a tax this
is to be called. If it can be sustained by the name given to it by the
local courts it mast be sustained by us. it is called affranchise tax in
the act. but it is a franchise tax measured by property. A tax very
like the present was treated as a tax on the property of the corporation
in Delaware. Lackawanna & Western R. R. v. Pennsylvania, IDS [J. s.
341, 353. This seems to be regarded as such a lax by the Court of
Appeals in this case. See People v. Morgan. ITS X. Y. 433, 439. If
it is a tax on any franchise which the State of New York gave, and the
same State could take away, it stands at least no worse. The relator's
argument assumes that it must be regarded as a tax of a particular kind,
in order to invalidate it, although it might be valid if regarded as the
State court regards it.
Suppose, then, that the State of New York had taxed the property
■directly, there was nothing to hinder its taxing the whole of it. It is
true that it has been decided that property, even of a domestic corpora-
tion, cannot be taxed if it is permanently out of the State. Union Re-
frigerator Transit Co. >•. 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 <!<• Sirey: Code Civil, Art. 14, Note 42: " Un 6trangcr qui a uno
maison de commerce 6tablie el patente en France, pent, aussi bien qu'un francais,
assigner un autre Stranger devant un tribunal francais."
330 SCHIBSBY V. WESTENHOLZ. [CHAP. III.
domiciled in England, and in no sense French subjects, and having no
propert} r in France.
I then ruled that I could not enter into the question whether the
French judgment was according to the merits, no fraud being alleged
or shown.
I expressed an opinion (which I have since changed) that, subject
to the third plea, the plaintiff was entitled to the verdict, but reserved
the point.
The jury found that the defendants had notice and knowledge of the
summons and the pendency of the proceedings in time to have appeared
and defended the action in the French court. I then directed the ver-
dict for the plaintiff, but reserved leave to enter the verdict for the
defendants on these facts and this finding.
No question was raised at the trial as to the sufficiency of the pleas
to raise the defence. If there had been, I should have made any
amendment necessary, but, in fact, we are of opinion that none was
required.
A rule was accordingly obtained by Sir George Honyman, against
which cause was shown in the last term and in the sittings after it be-
fore my Brothers Mellor, Lush, Hannen, and myself. During the
interval between the obtaining of the rule and the showing cause, the
case of Godard v. Gray, L. R. 6 Q. B. 139, on which we have just
given judgment, was argued before my Brothers Mellor, Hannen, and
myself, and we had consequently occasion to consider the whole subject
of the law of England as to enforcing foreign judgments.
My Brother Lush, who was not a party to the discussions in Godard
v. Gray, L. R. 6 Q. B. 139, 147, has, since the argument in the present
case, perused the judgment prepared by the majority in Godard v.
Gray, and approves of it ; and, after hearing the argument in the
present case, we are all of opinion that the rule should be made
absolute.
It is unnecessary to repeat again what we have already said in
Godard v. Gray.
We think that, for the reasons there given, the true principle on
which the judgments of foreign tribunals are enforced in England is
that stated by Parke, B., in Russell v. Smyth, 9 M. & W. 819, and
again repeated by him in Williams v. Jones, 13 M. & W. 633, that the
judgment of a court of competent jurisdiction over the defendant im-
poses a duty or obligation on the defendant to pay the sum for which
judgment is given, which the courts in this country are bound to en-
force ; and consequently that anything which negatives that duty, or
forms a legal excuse for not performing it, is a defence to the action.
We were much pressed on the argument with the fact that the British
legislature has, by the Common Law Procedure Act, 1852 (15 & 16
Vict. c. 76), ss. 18 & 19, conferred on our courts a power of summon-
ing foreigners, under certain circumstances, to appear, and in case they
do not, giving judgment against them by default. It was this consid-
SECT. II.] SCHIBSBY V. WESTENHOLZ. 33V
eration principally which Induced me at the trial to entertain the opinion
which I then expressed and have since changed. And we think that if
the principle on which foreign judgments were enforced was that which
is loosely called " comity," we could hardly decline to enforce a foreign
judgment given in France against a resident in Great Britain under
circumstances hardly, if at all, distinguishable from those under which
we, mutatis mutandis, might give judgment against a resident in
France ; but it is quite different if the principle be that which we have
just laid down.
Should a foreigner be sued under the provisions of the statute re-
ferred to, and then come to the courts of this country and desire to be
discharged, the only question which our courts could entertain would
be whether the acts of the British legislature, rightly construed, gave
us jurisdiction over this foreigner, for we must obey them. But if,
judgment being given against him in our courts, an action were brought
upon it in the courts of the United States (where the law as to the
enforcing foreign judgments is the same as our own), a further question
would be open, viz.. not only whether the British legislature had given
the English courts jurisdiction over the defendant, but whether he°was
under any obligation which the American courts could recognize to
submit to the jurisdiction thus created. This is precisely the question
which we have now to determine with regard to a jurisdiction assumed
by the French jurisprudence over foreigners.
Again, it was argued before us that foreign judgments obtained by
default, where the citation was (as in the present case) by an artificial
mode prescribed by the laws of the country in which the judgment was
given, were not enforceable in this country because such a mode of
citation was contrary to natural justice, and if this were so, doubtless
the finding of the jury in the present case would remove that objection.
But though it appears by the report of Buchanan v. Rucker, 1 Camp.
63, that Lord Ellenborough in the hurry of Nisi Prius at first used ex-
pressions to this effect, yet when the case came before him in banco in
Buchanan o. Rucker, 9 East, 192, he entirely abandoned what (with
all deference to so great an authority) we cannot regard as more than
declamation, and rested his judgment on the ground that laws passed
by our country were not obligatory on foreigners not subject to their
jurisdiction. "Can," he said, » the Island of Tobago pass a law to
bind the rights of the whole world? "
The question we have now to answer is, Can the empire of France
pass a law to bind the whole world? Wo admit, with perfect can-
dor, thai in the supposed case of a judgment, obtained in this country
against a foreigner under the provisions of the Common Law Pro-
cedure Act, being sued on in a court of the United States, the question
for the court of the United States would be, Can the Island of Great
Britain pass a law to bind the whole world? We think in each case
the answer should be, No, but every country can pass laws to bind a
great many persons ; and therefore the further question has to be de-
332 SCHIBSBY V. WESTENHOLZ. [CHAP. III.
termined, whether the defendant in the particular suit was such a per-
son as to be bound by the judgment which it is sought to enforce.
Now on this we think some things are quite clear on principle. If the
defendants had been at the time of the judgment subjects of the coun-
try whose judgment is sought to be enforced against them, we think
that its laws would have bound them. Again, if the defendants had
been at the time when the suit was commenced resident in the country,
so as to have the benefit of its laws protecting them, or, as it is some-
times expressed, owing temporary allegiance to that country, we think
that its laws would have bound them.
If at the time when the obligation was contracted the defendants
were within the foreign country, but left it before the suit was insti-
tuted, we should be inclined to think the laws of that country bound
them ; though before finally deciding this we should like to hear the
question argued. But every one of those suppositions is negatived in
the present case.
Again, we think it clear, upon principle, that if a person selected,
as pfaintiff, the tribunal of a foreign country as the one in which he
would sue, he could not afterwards say that the judgment of that
tribunal was not binding upon him.
In the case of General Steam Navigation Company v. Guillou, 11
M. & W. 877, 894, on a demurrer to a plea, Parke, B., in delivering
the considered judgment of the Court of Exchequer, then consisting of
Lord Abinger, C.B., Parke, Alderson, and Gurney, BB., thus expresses
himself: "The substance of the plea is that the cause of action has
been already adjudicated upon, in a competent court, against the plain-
tiffs, and that the decision is binding upon them, and that they ought
not to be permitted again to litigate the same question. Such a plea
ought to have had a proper commencement and conclusion. It be-
comes, therefore, unnecessary to give any opinion whether the pleas
are bad in substance ; but it is not to be understood that we feel much
doubt on that question. They do not state that the plaintiffs were
French subjects, or resident, or even present in France when the suit
began, so as to be bound by reason of allegiance or temporary pres-
ence by the decision of a French court, and they did not select the
tribunal and sue as plaintiffs, in any of which eases the determination
might have possibly bound them. They were mere strangers, who put
forward the negligence of the defendant as an answer, in an adverse
suit in a foreign country, whose laws they were under no obligation
to obey."
It will be seen from this that those very learned judges, besides ex-
pressing an opinion conformable to ours, also expressed one to the
effect that the plaintiffs in that suit did not put themselves under an
obligation to obey the foreign judgment, merely by appearing to defend
themselves against it. On the other hand, in Simpson v. Fogo, 1 John.
& H. 18, 29 L. J. (Ch.) 657, 1 Hem. & M. 195, 32 L. J. (Ch.) 249,
where the mortgagees of an English ship had come into the courts of
SECT. II.] SCHIBSBY V. WESTENHOLZ. 333
Louisiana, to endeavor to prevent the sale of their ship seized under
an execution against the mortgagors, and the courts of Louisiana de-
cided against them, the Vice-Chancellor and the very learned counsel
who argued in the case seem all to have taken it for granted that the
decision of the court in Louisiana would have hound the mortgagees
had it not been in contemptuous disregard of English law. The case
of General Steam Navigation Company v. Guillou, 11 M. & W. 877,
was not referred to, and therefore cannot be considered as dissented
from ; but it seems clear that they did not agree in the latter part of
the opinion there expressed.
We think it better to leave this question open, and to express no
opinion as to the effect of the appearance of a defendant, where it is
so far not voluntary that he only comes in to try to save some prop-
erty in the hands of the foreign tribunal. But we must observe that
the decision in De Cosse Brissac v. Kathbone, 6 H. & N. 301, 30 L. J.
(Ex.) 238, is an authority that where the defendant voluntarily appears
and takes the chance of a judgment in his favor he is bound.
In Douglas v. Forrest, 4 Bing. 703, the court, deciding in favor of
the party suing on a Scotch judgment, say: "We confine our judg-
ment to a case where the party owed allegiance 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."
Those circumstances are all negatived here. We should, however,
point out that, whilst we think that there may be other grounds for
holding a person bound by the judgment of the tribunal of a foreign
country than those enumerated in Douglas v. Forrest, we doubt very
much whether the possession of property, locally situated in that
country and protected by its laws, does afford such a ground. It
should rather seem that, whilst every tribunal may very properlv exe-
cute process against the property within its jurisdiction, the existence
of such property, which may be very small, affords no sufficient ground
for imposing on the foreign owner of that property a duty or obligation
to fulfil the judgment. But it is unnecessary to decide this, as the de-
fendants had in this case no property in France. As to this, see Lon-
don and North Western Railway Company v. Lindsay, 3 Macq. 99.
We think, and this is all that we need decide, that there existed
nothing in the present case imposing on the defendants any duty to
obey the judgment of a French tribunal.
We think, therefore, that the rule must be made absolute.
Rule absolute. 1
1 Ace. McEwen v. Zimmei-, 38 Mich. 765 ; Scott v. Noble, 72 Pa. 115 ; Tillin^liast
v. Boston, &c, Co., 39 S. C. 484, 18 S. E. 120. See Comber v. Leyland, 1898] A. C.
524. — Ed.
334 SIRDAR GURDYAL SINGH V. RAJAH OF FARIDKOTE. [CHAP. III.
SIRDAR GURDYAL SINGH v. THE RAJAH OF FARIDKOTE.
Judicial Committee of the Privy Council. 1894.
[Reported [1894] Appeal Cases, 670.]
The judgment of their lordships was delivered by the
Earl of Selborne. The respondent, the Rajah of Faridkote, ob-
tained in the civil court of that native state, in 1879 and 1880, two
ex parte judgments, in two suits instituted by him against the appel-
lant, for sums amounting together to Rs. 76,474 11a. 3p., and costs.
For all the purposes of the question to be now decided, those two suits
may be treated as one ; the appeals to Her Majesty in council having
been consolidated. Two actions, founded on these judgments, were
brought by the rajah against the appellant in the court of the assistant
commissioner of Lahore, and were dismissed by that court, on the
ground that the judgments were pronounced by the Faridkote court,
without jurisdiction as against the appellant. On appeal to the addi-
tional commissioner of Lahore, the judgments of the first court were
upheld. The rajah then appealed to the chief court of the Punjaub,
which differed from both those tribunals, and upheld the jurisdiction of
the Faridkote court.
Faridkote is a native state, the rajah of which has been recognized
by Her Majesty as having an independent civil, criminal, and fiscal
jurisdiction. The judgments of its courts are, and ought to be, regarded
in Her Majesty's courts of British India as foreign judgments. The
additional commissioner of Lahore thought that no action could be
brought in Her Majesty's courts upon a judgment of a native state;
but in this opinion their lordships do not concur.
The appellant was for five }"ears, beginning in 1869, in the service of
the late Rajah of Faridkote as his treasurer ; and the causes of action,
on which the suits in the Faridkote court were brought, arose within
that state, and out of that employment of the appellant by the late
rajah. The claim made in each of the suits was merely personal, for
money alleged to be due, or recoverable in the nature of damages, from
the appellant. It is immaterial, in their lordships' view, to the question
of jurisdiction (which is the only question to be now decided) whether
the case, as stated, ought to be regarded as one of contract or of tort.
The appellant left the late rajah's service, and ceased to reside within
his territorial jurisdiction, in 1874. He was from that time generally
resident in another independent native state, that of Jhind, of which he
was a native subject and in which he was domiciled ; and he never re-
turned to Faridkote after he left it in 1874. He was in Jhind when he
was served with certain processes of the Faridkote court, as to which
it is unnecessan* for their lordships to determine what the effect would
have been if there had been jurisdiction. He disregarded them, and
never appeared in either of the suits instituted by the rajah, or other-
SECT. II.] SIRDAR GURBYAL SINGH V. RAJAH OF FARIDKOTE. 335
wise submitted himself to that jurisdiction. He was under no obliga-
tion to do so, by reason of the notice of the suits which he thus received
or otherwise, unless that court had lawful jurisdiction over him.
Under these circumstances there was, in their lordships' opinion,
nothing to take this case out of the general rule, that the plaintiff' must
sue in the court to which the defendant is subject at the time of suit
(actor sequitur forum rei), which is rightly stated by Sir Robert Phil-
limore (International Law, vol. iv., s. 81)1) to "lie at the root of
all international, and of most domestic, jurisprudence on this matter."
All jurisdiction is properly territorial, and extra territorium jus dicenti,
impune non paretur. Territorial jurisdiction attaches (with special
exceptions) upon all persons either permanently or temporarily resident
within the territory while they are within it ; but it does not follow
them after they have withdrawn from it, and when they are living in
another independent country. It exists always as to land within the
territory, and it may be exercised over movables within the territory ;
and, in questions of status or succession governed by domicile, it may
exist as to persons domiciled, or who when living were domiciled,
within the territory. As between different provinces under one sover-
eignty (e. (/., under the Roman Empire) the legislation of the sovereign
may distribute and regulate jurisdiction ; but no territorial legislation
can give jurisdiction which any foreign court ought to recognize against
foreigners, who owe no allegiance or obedience to the power which so
legislates.
In a personal action, to which none of these causes of jurisdiction
apply, a decree pronounced in absentem by a foreign court, to the juris-
diction of which the defendant has not in any way submitted himself,
is by international law an absolute nullity. He is under no obligation
of any kind to obey it; and it must be regarded as a mere nullity bv
the courts of every nation except (when authorized by special local
legislation) in the country of the forum by which it was pronounced.
These are doctrines laid down by all the leading authorities on inter-
national law ; among others, by Story (Conflict of Laws, 2d ed., sects.
■546, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries,
vol. i., p. 284, note c, 10th ed.), and no exception is made to them, in
favor of the exercise of jurisdiction against a defendant not otherwise
subject to it, by the courts of the country in which the cause of action
arose, or (in cases of contract) by the courts of the locus solutionis.
In those cases, as well as all others, when the action is personal, the
courts of the country in which a defendant resides have power, and
they ought to be resorted to, to do justice.
The conclusion of the learned judges in the chief court of the Pun-
jaub is expressed in the following sentence of the judgment delivered
by Sir Meredyth Plowden in the first of the two actions : —
" On the whole, I think it may be said, that a State assuming to exer-
cise jurisdiction over an absent foreigner, in respect of an obligation
arising out of a contract made by the foreigner while resident in the
336 SIRDAR GURDYAL SINGH V. RAJAH OF FARIDKOTE. [CHAP. III.
state and to be fulfilled there, is not acting in contravention of the
general practice or the principles of international law, so that its judg-
ment should not be binding merely on the ground of the absence of the
defendant."
If this doctrine were accepted, its operation, in the enlargement of
territorial jurisdiction, would be very important. No authority, of any
relevancy, was cited at their lordships' bar to support it, except Becquet
v. Macarthy, 2 B. & Ad. 951, and a passage from the judgment deliv-
ered by Blackburn, J., in Schibsby v. Westenholz.
Of Becquet v. Macarthy, it was said by great authorit}' in Don v.
Lippman, 5 CI. & F. 1, that it " had been supposed to go to the verge
of the law ; " and it was explained (as their lordships think, cor-
rectly) on the ground that "the defendant held a public office in the
ver} r colony in which he was originally sued." He still held that office
at the time when he was sued ; the cause of action arose out of, or was
connected with it ; and, though he was in fact temporarily absent, he
might, as the holder of such an office, be regarded as constructively
present in the place where his duties required bis presence, and there-
fore amenable to the colonial jurisdiction. If the case could not be
distinguished on that ground from that of an}" absent foreigner who, at
some previous time, might have been in the employment of a colonial
government, it would, in their lordships' opinion, have been wrongly
decided; and it is evident that Fry, L. J., in Rousillon v. Rousillon,
14 Ch. D. 351, took that view.
The words of Blackburn, J.'s, judgment, in Schibsb}' v. Westenholz,
which were relied upon, are these : —
" If, at the time when the obligation was contracted, the defendants
were within the foreign country-, but left it before the suit was insti-
tuted, we should be inclined to think the laws of that country' bound
them ; though, before finally deciding this, we should like to hear the
question argued."
Upon this sentence it is to be observed, that beyond doubt in such
a case the laws of the country in which an obligation was contracted
might bind the parties, so far as the interpretation and effect of the
obligation was concerned, in whatever forum the remedy might be
sought. The learned judge had not to consider whether it was a legiti-
mate consequence from this, that they would be bound to submit, on
the footing of contract or otherwise, to any assumption of jurisdiction
over them in respect of such a contract, by the tribunals of the country
in which the contract was made, at any subsequent time, although they
might be foreigners resident abroad. That question was not argued,
and did not arise, in the case then before the court ; and, if this was
what Blackburn, J., meant, their lordships could not regard any mere
inclination of opinion, on a question of such large and general impor-
tance, on which the judges themselves would have desired to hear argu-
ment if it had required decision, as entitled to the same weight which
might be due to a considered judgment of the same authority. Upon
SECT . n .] HENDERSON V. STANIFORD. 337
the question itself, which was determined in Schibsby ». Westenholz,
Blackburn, J., had at the trial formed a different opinion from that at
which he ultimately arrived; and their lordships do not doubt that, if
he had heard argument upon the question, whether an obligation to
accept the forum loci contractus, as having, by reason of the contract,
a conventional jurisdiction against the parties in a suit founded upon
that contract for all future time, wherever they might be domiciled or
resident, was generally to be implied, he would have come (as their
lordships do) to the conclusion, that such obligation, unless expressed,
could not be implied. _
Their lordships will therefore humbly advise Her Majesty to reverse
the decrees of the chief court of the Punjaub, and to restore those of
the additional commissioner of Lahore. The respondent will pay the
costs of the appeals to the courts below and of these appeals.
HENDERSON v. STANIFORD.
Supreme Judicial Court of Massachusetts. 1870.
[Reported 105 Massachusetts, 504.]
Contract on a promissory note dated October 20, 1864, made by
the defendant payable in one month to the order of the plaintiff, who
was described in the writ (which was dated January 20, 1869), as of
Crescent City in the countv of Del Norte and State of California. The
answer put the plaintiff to his proof concerning the making of the note,
and set up " that if the plaintiff shall show that the defendant made
the note then the defendant answers that there is a judgment upon
said note in the county of Del Norte and State of California, against
the defendant and in favor of the plaintiff, and the same has never
been reversed, reviewed, or annulled, but is still in force against the
defendant in said State, where said contract was made, and where said
defendant for a long time, to wit, from the year 1849 until some time
in the vear 1867, had his residence, — that he came to the State of
Massachusetts some time in the year 1807, but with the intention in a
short time of returning to the State of California."
The parties stated the case, referring to the pleadings, admitting the
making of the note bv the defendant, and continuing as follows: "In
the year 1849 the defendant went from Massachusetts to California,
and" voted and was taxed thereuntil he returned to Massachusetts in
the year 1867. When he came to Massachusetts it was his intention
to return to California, but in consequence of domestic affliction he
has remained here. While in California he had his residence in the
township of Crescent, otherwise known as Crescent City. In June,
1868, the plaintiff commenced an action before a justice's court, against
338 DARRAH V. WATSON. [CHAP. III.
this defendant, in Crescent township and county of Del Norte, where
said defendant had resided, upon the note in this suit, notice of the
pendency of said action being duly given by publication ; and the same
was prosecuted to final judgment upon default, the defendant not
appearing personally or by counsel. Said judgment has never been
arrested, reversed, reviewed, or annulled, but is now a valid and
unsatisfied judgment in full force in the State of California. Upon
the above facts it is agreed that the court may render such judgment
as is warranted by the pleadings." The superior court gave judgment
for the defendant, and the plaintiff appealed.
Wells, J. The defendant was not in California when the action
was commenced against him there ; nor at any time during its pend-
ency. No service of process or notice was ever made upon him
personally. He did not appear by counsel, or otherwise, nor assent
to the judgment, which was rendered upon his default of appearance.
But he had been, for a long time before that, a citizen of California ;
the contract was made there ; and that continued to be his legal
domicile when the judgment was rendered. He was, therefore, upon
principles of international right, subject to the laws, and to the juris-
diction of the courts of that State. Story Confl. Laws, §§ 546, 548;
Hall v. Williams, 6 Pick. 232, 240 ; Gillespie v. Commercial Insurance
Co., 12 Gray, 201. In Massachusetts, jurisdiction is assumed to be
exercised in suits against parties who have been inhabitants of the
State, although not so at the time of action brought. Gen. Sts. c. 126,
§ 1 ; Morrison v. Underwood, 5 Cush. 52 ; Orcutt v. Ranney, 10 Cush.
183. We must presume that the exercise of jurisdiction, in the suit
in question, was in accordance with the laws of California. The agreed
facts state that the judgment " is now a valid and unsatisfied judgment,
in full force in the State of California." x
DARRAH v. WATSON.
Supreme Court of Iowa. 1873.
[Reported 36 Iowa, 116.]
Miller, J. 2 The judgment record, on which this action is brought,
shows that the action was commenced in the county court of Monon-
galia County, Virginia (now West Virginia), by the issuance of a sum-
mons, returnable on the first Monday of June, 1859. The sheriff's
return on the summons shows a a personal service thereof on the 6th
day of June, 1859. . . .
1 The remainder of the opinion, in which the effect of the judgment is discussed,
is here omitted.
Ace. Hunt v. Hunt, 72 N. Y. 217 ; Frothingham v. Barnes, 9 R. I. 474 (semble).—
Ed.
2 Part of the opinion is omitted. — Ed.
SECT. II. J DARKAH V. WATSON. 330
On the trial the defendant Watson was sworn as a witness, and tes-
tified that during the year 1859, he resided in Greene Count)-, Pennsyl-
vania, and had so resided there for about three or four years prior to
June, 1859, and never afterward resided in the State of Virginia; that
during the month of June, 1859, he went from his residence in Penn-
sylvania into Monongalia County, Virginia, temporarily and on business ;
was there only two or three hours and returned again to Greene County,
Pennsylvania, which latter county adjoins Monongalia County, Vir-
ginia ; that while thus in the latter county he was served with some
kind of paper or process, which was the only paper or process ever
served on him in said county ; that he paid no attention to the matter,
never appeared in the action, made no defence and authorized no one
to appear for him. Whereupon defendant's counsel asked the court to
instruct the jury in substance, that if they found that the defendant,
at the time of the rendition of the judgment in Virginia, was not a
resident of or domiciled in said State, but was a resident of and domi-
ciled in the State of Pennsylvania ; that defendant, when the summons
or original process was served upon him, was in the State of Virginia
only for a few hours temporarily and on business ; that defendant never
afterward resided in said State; that defendant did not appear to the
action or authorize any one to appear for him, then the county court
of Monongalia County, Virginia, did not, by virtue of such service or
by any proceedings in said action, acquire jurisdiction of the person of
defendant to render a personal judgment as would be binding against
him in this State.
This instruction was refused, and this ruling is assigned as error.
We have before said that the insufficiency of the service of the sum-
mons would not have the effect to render the judgment void as for
want of jurisdiction. But it is insisted by appellant's counsel that
" even admitting that the summons had been served in time and per-
sonally on defendant in Virginia," the court did not acquire juris-
diction of the defendant who was a resident of another State, and
never afterward was a resident of Virginia, but was merely temporarily
therein when he was served with original process in the action. The
position assumed by counsel is, that the courts of Virginia could not
acquire jurisdiction of the person of a citizen and resident of Pennsyl-
vania by the service of original process upon him while temporarily in
the former State on business.
The doctrine is well settled that no State can by its judgments ren-
dered in its courts bind personally a defendant who is not within its
jurisdiction, and on whom no notice has been served. Melhop &
Kingman v. Doane & Co., 31 Iowa, 397, and cases cited. And that
to entitle a judgment rendered in one State to the full faith and credit
mentioned in the Constitution and laws of the United Suites the court
must have had jurisdiction not only of the subject-matter, but of the
person of the defendant. Ibid. But is it true that the courts of one
State cannot acquire jurisdiction of the person of a citizen and resi-
340 ST. CLAIR V. COX. [CHAP. III.
dent of a sister State by the service of original process upon such
citizen within the jurisdiction of the former State? We think it is not.
In the only case cited by appellant's counsel, Bissell v. Briggs, 9 Mass.
462, Chief Justice Parsons, on page 470, says : " Now, an inhabitant
of one State may, without changing his domicile, go into another; he
may there contract a debt or commit a tort, and while there he owes a
temporary allegiance to that State, is bound by its laws, and is amen-
able to its courts." We have found no case holding a contrary doctrine
to this.
Applying this doctrine to the case before us, we hold that the county
court of Virginia did acquire jurisdiction of the person of the defend-
ant by the service of the summons upon him while temporarily within
its local jurisdiction, and that its judgment is entitled to the same faith
and credit in this State as it was entitled by the laws of the State where
rendered. The court below did not err, therefore, in refusing the in-
struction asked, and its judgment is Affirmed. 1
ST. CLAIR v. COX.
Supreme Court of the United States. 1882.
[Reported 106 United States, 350.]
Field, J. This action was brought by the plaintiff in the court
below, to recover the amount due on two promissory notes of the
defendants, each for the sum of $2,500, bearing date on the 2d of
August, 1877, and payable five months after date, to the order of the
Winthrop Mining Company, at the German National Bank, in Chi-
cago, with interest at the rate of seven per cent per annum.
To the action the defendants set up various defences, and, among
others, substantially these: That the consideration of the notes had
failed; that they were given, with two others of like tenor and
amount, to the Winthrop Mining Company, a corporation created
under the laws of Illinois, in part payment for ore and other prop-
erty sold to the defendants upon a representation as to its quantity,
which proved to be incorrect; that only a portion of the quantity
sold was ever delivered, and that the value of the deficiency exceeded
the amount of the notes in suit; that at the commencement of the
action, and before the transfer of the notes to the plaintiff, the
Winthrop Mining Company was indebted to the defendants in a
large sum, viz. 810,000, upon a judgment recovered by them in the
Circuit Court of Marquette County, in the State of Michigan, and
that the notes were transferred to him after their maturity and
dishonor, and after he had notice of the defences to them.
i Ace. Alley v. Caspari, 80 Me. 234, 14 Atl. 12; Thompson v. Cowell, 148 Mass.
552. — Ed.
SECT. II.] ST. CLAIR V. COX. 341
On the trial, evidence was given by the defendants tending to
show that the plaintiff was not a bona fide holder of the notes for
value. A certified copy of that judgment was also produced by them
and offered in evidence; but on his objection that it had not been
shown that the court had obtained jurisdiction of the parties, it was
excluded, and to the exclusion an exception was taken. The jury
found for him for the full amount claimed; and judgment having
been entered thereon, the defendants brought the case here for review.
The ruling of the court below in excluding the record constitutes the
only error assigned.
The judgment of the Circuit Court in Michigan was rendered in
an action commenced by attachment. If the plaintiffs in that action
were, at its commencement, residents of the State, of which some
doubt is expressed by counsel, the jurisdiction of the court, under
the writ, to dispose of the property attached, cannot be doubted, so
far as was necessary to satisfy their demand. No question was
raised as to the validity of the judgment to that extent. The objec-
tion to it was as evidence that the amount rendered was an existing
obligation or debt against the company. If the court had not ac-
quired jurisdiction over the company, the judgment established noth-
ing as to its liability beyond the amount which the proceeds of the
property discharged. There was no appearance of the company in
the action, and judgment against it was rendered for $6,450 by
default. The officer, to whom the writ of attachment was issued,
returned that, by virtue of it, he had seized and attached certain
specified personal property of the defendant, and had also served
a copy of the writ, with a copy of the inventory of the property
attached, on the defendant, "by delivering the same to Henry J.
Colwell, Esq., agent of the said Winthrop Mining Company, person-
ally, in said county."
The laws of Michigan provide for attaching property of abscond-
ing, fraudulent, and non-resident debtors and of foreign corpora-
tions. They require that the writ issued to the sheriff, or other
officer by whom it is to be served, shall direct him to attach the
property of the defendant, and to summon him if he be found within
the county, and also to serve on him a copy of the attachment and
of the inventory of the property attached. They also declare that
where a copy of the writ of attachment has been personally served
on the defendant, the same proceedings may be had thereon in the
suit in all respects as upon the return of an original writ of sum-
mons personally served where suit is commenced by such summons.
2 Comp. Laws, 1871, sects. 6.'5'.I7 and Gil .'5.
They also provide, in the chapter regulating proceedings by and
against corporations, that "suits against corporations may be com-
menced by original writ of summons, or by declaration, in the same
manner that personal actions may be commenced against individuals,
and siioh writ, or a copy of such declaration, in any suit against a
342 ST. CLAIR V. COX. [CHAP. III.
corporation, may be served on the presiding officer, the cashier, the
secretary, or the treasurer thereof ; or, if there be no such officer, or
none can be found, such service may be made on such other officer
or member of such corporation, or in such other manner as the court
in which such suit is brought may direct; " and that "in suits com-
menced by attachment in favor of a resident of this State against
any corporation created by or under the laws of any other State,
government, or country, if a copy of such attachment and of the
inventory of property attached shall have been personally served on
any officer, member, clerk, or agent of such corporation within this
State, the same proceedings shall be thereupon had, and with like
effect, as in case of an attachment against a natural person, which
shall have been returned served in like manner upon the defendant."
2 Comp. Laws, 1871, sects. 6544 and 6550.
The courts of the United States only regard judgments of the
State courts establishing personal demands as having validity or a3
importing verity where they have been rendered upon personal cita-
tion of the party, or, what is the same thing, of those empowered to
receive process for him, or upon his voluntary appearance.
In Pennoyer v. Neff we had occasion to consider at length the
manner in which State courts can acquire jurisdiction to render a
personal judgment against non-residents which would be received
as evidence in the Federal courts; and we held that personal service
of citation on the party or his voluntary appearance was, with some
exceptions, essential to the jurisdiction of the court. The excep-
tions related to those cases where proceedings are taken in a State to
determine the status of one of its citizens towards a non-resident, or
where a party has agreed to accept a notification to others or service
on them as citation to himself. 95 U. S. 714.
The doctrine of that case applies, in all its force, to personal judg-
ments of State courts against foreign corporations. The courts
rendering them must have acquired jurisdiction over the party by
personal service or voluntary appearance, whether the party be a
corporation or a natural person. There is only this difference: a
corporation being an artificial being, can act only through agents,
and only through them can be reached, and process must, therefore,
be served upon them. In the State where a corporation is formed
it is not difficult to ascertain who are authorized to represent and
act for it. Its charter or the statutes of the State will indicate in
whose hands the control and management of its affairs are placed.
Directors are readily found, as also the officers appointed by them
to manage its business. But the moment the boundary of the State
is passed difficulties arise; it is not so easy to determine who repre-
sent the corporation there, and under what circumstances service on
them will bind it.
Formerly it was held that a foreign corporation could not be sued
in an action for the recovery of a personal demand outside of the
SECT. II.] ST. CLAIR V. COX. 343
State by which it was chartered. The principle that a corporation
must dwell in the place of its creation, and cannot, as said by Mr.
Chief Justice Taney, migrate to another sovereignty, coupled with
the doctrine that an officer of the corporation does not carry his func-
tions with him when he leaves his State, prevented the maintenance
of personal actions against it. There was no mode of compelling
its appearance in the foreign jurisdiction. Legal proceedings there
against it were, therefore, necessarily confined to the disposition of
such property belonging to it as could be there found ; and to author-
ize them legislation was necessary.
In McQueen v. Middleton Manufacturing Co., decided in 1819, the
Supreme Court of New York, in considering the question whether
the law of that State authorized an attachment against the property
of a foreign corporation, expressed the opinion that a foreign cor-
poration could not be sued in the State, and gave as a reason that
the process must be served on the head or principal officer within
the jurisdiction of the sovereignty where the artificial body existed;
observing that if the president of a bank went to New York from
another State he would not represent the corporation there; and that
"his functions and his character would not accompany him when he
moved beyond the jurisdiction of the government under whose laws
he derived this character." 1G Johns. (N. Y.) 5. The opinion thus
expressed was not, perhaps, necessary to the decision of the case,
but nevertheless it has been accepted as correctly stating the law.
It was cited with approval by the Supreme Court of Massachusetts,
in 1834, in Peckham v. North Parish in Haverhill, the court adding
that all foreign corporations were without the jurisdiction of the
process of the courts of the Commonwealth. 16 Pick. (Mass.) 274.
Similar expressions of opinion are found in numerous decisions,
accompanied sometimes with suggestions that the doctrine might be
otherwise if the foreign corporation sent its officer to reside in the
State and transact business there on its account. Libbey v. Hodg-
don, 9 N. H. 394; Moulin v. Trenton Insurance Co., 24 N. J. L.
222.
This doctrine of the exemption of a corporation from suit in a
State other than that of its creation was the cause of much incon-
venience, and often of manifest injustice. The great increase in the
number of corporations of late years, and the immense extent of
their business, only made this inconvenience and injustice more fre-
quent and marked. Corporations now enter into all the industries
of the country. The business of banking, mining, manufacturing,
transportation, and insurance is almost entirely carried on by them,
and a large portion of the wealth of the country is in their hands.
Incorporated under the laws of one State, they carry on the most
extensive operations in other States. To meet and obviate this
inconvenience and injustice, the legislatures of several States inter-
posed, and provided for service <>)' 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<J),
that " ' no sovereignty can extend its process beyond its own territo-
ria 1 limits, to subject other persons or property to its judicial deci-
sions. Every exertion of authority beyond these limits is a mere
nullity, and incapable of binding such persons or property in other
tribunals,'" and thus continued: "Such is the familiar, reasonable,
and just principle of the law of nations; and it is scarce supposable
that the framers of the Constitution designed to abrogate it between
States which were to remain as independent of each other, for all but
national purposes, as they were before the revolution. Certainly it
was not intended to legitimate an assumption of extraterritorial
jurisdiction which would confound all distinctive principles of sepa-
rate sovereignty ; and there evidently was such an assumption in the
proceedings under consideration. . . . But I would perhaps do the
jurisprudence of Louisiana injustice, did I treat its cognizance of
the defendants as an act of usurpation. It makes no claim to extra-
territorial authority, but merely concludes the party in its own
courts, and leaves the rest to the Constitution as carried out by the
act of Congress. When, however, a creditor asks us to give such a
judgment what is in truth an extraterritorial effect, he asks us to do
what we will not, till we are compelled by a mandate of the court in
the last resort." p. 451.
In Weaver v. Boggs, 38 Maryland, 255, it was held that suit could
not be maintained in the courts of Maryland upon a judgment of a
court of Pennsylvania rendered upon returns of nihil to two succes-
sive writs of scire facias issued to revive a Pennsylvania judgment
of more than twenty years' standing, where the defendant had for
more than twenty years next before the issuing of the writs resided
in Maryland and out of the jurisdiction of the court that rendered
the judgment. The court said: "It is well settled that a judgment
obtained in a court of one State cannot be enforced in the courts and
against a citizen of another, unless the court rendering the judgment
has acquired jurisdiction over the defendant by actual service of
process upon him, or by his voluntary appearance to the suit and
submission to that jurisdiction. Such a judgment may be perfectly
valid in the jurisdiction where rendered and enforced there even
against the property, effects, and credits, of a non-resident defendant
there situated ; but it cannot be enforced or made the foundation of
an action in another State. A law which substitutes constructive
for actual notice is binding upon persons domiciled within the State
where such law prevails, and as respects the property of others there
situated, but can bind neither person nor property beyond its limits.
This rule is based upon international law, and upon that natural
protection which every country owes to its own citizens. It con-
cedes the jurisdiction of the court to the extent of the State where
SECT. II.] G. AND B. SEWING MACHINE CO. V. KADCLIFFE. 357
the judgment is rendered, but upon the principle that it would be
unjust to its own citizens to give effect to the judgments of a foreign
tribunal against them when they had no opportunity of being heard,
its validity is denied."
Publicists concur that domicile generally determines the particular
territorial jurisprudence to which every individual is subjected. As
correctly said by Mr. Wharton, the nationality of our citizens is that
of the United States, and by the laws of the United States they are
bound in all matters in which the United States are sovereign ; but
in other matters, their domicile is in the particular State, and that
determines the applicatory territorial jurisprudence. A foreign judg-
ment is impeachable for want of personal service within the juris-
diction of the defendant, this being internationally essential to
jurisdiction in all cases in which the defendant is not a subject of
the State entering judgment; and it is competent for a defendant in
an action on a judgment of a sister State, as in an action on a for-
eign judgment, to set up as a defence, want of jurisdiction, in that
he was not an inhabitant of the State rendering the judgment and
had not been served with process, and did not enter his appearance.
Whart. Conflict Laws, §§ 32, 654, 660; Story, Conflict Laws, §§ 539,
540, 586.
John Benge was a citizen of Maryland when he executed this obli-
gation. The subject-matter of the suit against him in Pennsylvania
was merely the determination of his personal liability, and it was
necessary to the validity of the judgment, at least elsewhere, that it
should appear from the record that he had been brought within the
jurisdiction of the Pennsylvania court by service of process, or his
voluntary appearance, or that he had in some manner authorized the
proceeding. By the bond in question he authorized "any attorney
of any court of record in the State of New York, or any other State,
to confess judgment against him (us) for the said sum, with release
of errors, etc." But the record did not show, nor is it contended,
that he was served with process, or voluntarily appeared, or that
judgment was confessed by an attorney of any court of record of
Pennsylvania. Upon its face, then, the judgment was invalid, and
to be treated as such when offered in evidence in the Maryland court.
It is said, however, that the judgment was entered against Benge
by a prothonotary, and that the piot honorary had power to do this
under the statute of Pennsylvania of February 24, 1806. Laws of
Penn. 1805-6, p. 347. This statute was proved as a fact upon the
trial in Maryland, and may be assumed to have authorized the action
taken, though under Connay v. Ilalstead, 7:5 Penn. St. 354, that
may, perhaps, be doubtful. And it is argued that the statute, being
in force at the time this instrument was executed, should be read
into it and considered as forming a part of it, and therefore that
John Benge had consented thai judgment might be thus entered
up against him without service of process, or appearance in person,
Or hv attorney.
358 FITZSIMMONS V. JOHNSON. [CHAP. III.
But we do not think that a citizen of another State than Pennsyl-
vania can be thus presumptively held to knowledge and acceptance
of particular statutes of the latter State. What Benge authorized
was a confession of judgment by any attorney of any court of record
in the State of New York or any other State, and be had a right to
insist upon the letter of the authority conferred. By its terms he
did not consent to be bound by the local laws of every State in the
Union relating to the rendition of judgment against their own citi-
zens without service or appearance, but on the contrary made such
appearance a condition of judgment. And even if judgment could
have been entered against him, not being served and not appearing,
in each of the States of the Union, in accordance with the laws
therein existing upon the subject, he could not be held liable upon
such judgment in any other State than that in which it was so
rendered, contrary to the laws and policy of such State.
The courts of Maryland were not bound to hold this judgment as
obligatory either on the grouud of comity or of duty, thereby per-
mitting the law of another State to override their own.
No color to any other view is given by our decisions in Johnson v.
Chicago & Pacific Elevator Co., 119 U. S. 388, 400, and Hopkins v.
Orr, 124 U. S. 510, cited for plaintiff in error. Those cases in-
volved the rendition of judgments against sureties on restitution and
appeal bonds if judgment went against their principals, and the
sureties signed with reference to the particular statute under which
each bond was given; nor did, nor could, any such question arise
therein as that presented in the case at bar.
Judgment affirmed. 1
FITZSIMMONS v. JOHNSON.
Supreme Court of Tennessee. 1891.
[Reported 90 Tennessee, 416.]
Caldwell, J. 2 John W. Todd died, testate, at his residence in
Clermont County, Ohio, in the early part of the year 1864. He
nominated his friends, John Johnson and C. W. Goyer, of Memphis,
Tennessee, as executors of his will. They accepted the trust, went
to Ohio, and, on April 27, 1864, were duly qualified by the Probate
Court of Clermont County as executors of the will.
1 See First Nat. Bank v. Cunniugham, 48 Fed. 510 ; Snyder v. Critchfield, 44
Neb. 66, 62 N. W. 306 ; Teel v. Yost, 128 N. Y. 387.
On consent as a ground of jurisdiction of the person, see Wright v. Bovnton, 37
N. H. 9 ; McCormick v. R. R., 49 N. Y. 303. — Ed.
2 Only so much of the opinion as deals with the question of jurisdiction is here
given. — Ed.
SECT. II.] FITZSIMMONS V. JOHNSON. 359
On November 6, 186."), the executors made what purported to be a
final settlement of the estate of their testator, showing that they had
received assets to the amount of §63,495.25, and that, of this, they
had paid to the widow of the testator, as sole distributee, $61,040.10,
and that the other 82,455.15 had been used in the payment of debts
and expenses of administration. This settlement was made in the
Probate Court of Clermont County, Ohio, on whose record the follow-
ing entry was made: "This day the court examined the accounts
and vouchers of C. W. Goyer and John Johnson, executors of the
estate of John W. Todd, deceased, and found the same to be in all
things correct; that they have been regularly advertised for excep-
tions, and none having been filed thereto, the same are hereby
approved and confirmed. And the court finds that said executors
have paid all just claims against said estate, and have distributed
the remainder according to the will of the testator. And the said
accounts are ordered to be recorded, and the executors are discharged."
The testator left no children or representatives of children. By
the first ten clauses of his will he expressed certain desires, which
need not be mentioned in this opiuiou, and made provision for his
widow; and by the eleventh clause he devised and bequeathed the
residuum of his estate, both real and personal, to his four sisters and
one brother. The provision made for the widow proved unsatisfac-
tory to her; hence, she failed to accept it. And her non-acceptance
had the same legal effect under the Ohio law that an affirmative
dissent has under our law. She had the same claims upon her hus-
band's estate as she would have had if he had died intestate.
The executors assumed that she was entitled to the whole of his
personal estate after the payment of debts and expenses, and upon
that assumption they paid her the $61,040.10.
Such had been the statute law of Ohio, but it was changed, so as
to allow the widow only one-third of her husband's net personal
estate, a few years before the final settlement.
On January 15, 1887, Mary A. Fitzsimmons, one of the residuary
legatees, filed her petition in error, in the Court of Common Pleas of
Clermont County, Ohio, for the purpose of having the judgment of
the Probate Court reviewed and reversed. Goyer having died in the
meantime, Johnson alone, as surviving executor, was made defend-
ant to this petition. The petition was accompanied with an affi-
davit that Johnson was a non-resident of the State of Ohio, and
could not, therefore, be personally served with summons, that he had
no attorney of record in the Stale and that it was a proper case for
publication. Thereupon publication was made for Johnson, as a
non-resident, requiring him to appear and plead to the petition; and
a copy of a newspaper containing t lie published notice was sent to
him at his residence in Memphis, Tennessee.
Johnson made default, ami on January 20, L888, the petition in
error was heard in the Court of Common Pleas, and the judgment of
360 FITZSIMMONS V. JOHNSON. [CHAP. III.
the Probate Court was reversed and set aside, and the cause was
remanded to the Probate Court for further proceedings. After the
remand, Mrs. Fitzsimmons and Mrs. Young, another of the residu-
ary legatees, appeared in the Probate Court and filed exceptions to
the accounts of Goyer and Johnson, which had been confirmed by
that court in 1865. These exceptions were set for hearing, and a
copy thereof, together with a notice of the time and place of hearing
the same by the court, was mailed to Johnson at Memphis.
Johnson again failed to appear. The exceptions were sustained,
and, on February 2, 1888, the Probate Court adjudged that the exec-
utors had been improperly credited in the former settlement with
the $61,040.10 paid the widow, and that they had received $30,000
besides, which they had not reported or accounted for in any way.
The court further adjudged that these two sums, together with inter-
est thereon, in all $130,640, remained, or should be, in the hands
of the executors for distribution; and it was ordered that Johnson,
as surviving executor, proceed to distribute said sum of $130,640
according to the will of John W. Todd, deceased, and according to
law.
That judgment is the principal ground of the present action. On
March 28, 1888, Mrs. Fitzsimmons and the other four residuary
legatees, by themselves and their representatives, filed this bill in
the Chancery Court at Memphis, to recover from Johnson, as surviv-
ing executor, and from the estate of Goyer, the deceased executor,
the said $130,640, and other sums alleged to have been received by
the same persons as executors of John W. Todd's estate in Tennessee.
The chancellor dismissed the bill on demurrer, so far as relief
was sought on the Ohio record, but retained it for other purposes, to
be hereafter stated. After final decree on the merits of the other
branch of the cause, both complainants and defendants appealed to
this court. All material questions raised in the Chancery Court are
presented here by assignments of error.
Was that part of the bill seeking relief on the judgment of the
Probate Court in Ohio properly dismissed?
The main ground of demurrer to that part of the bill was want of
jurisdiction in that court to pronounce the judgment.
The question of the court's jurisdiction of the subject-matter need
not be discussed or elaborated, for, by the statute of Ohio, her Pro-
bate Courts are given general jurisdiction to settle the accounts of
executors and administrators, and to direct distribution of balance
found in their hands. Jurisdiction of the subject-matter was, there-
fore, ample and complete. Rev. Stat. Ohio, sect. 534.
Whether the court had jurisdiction of the person of Johnson is
not so easily answered.
It is conceded in the bill and recited on the face of the record that
Goyer was dead, and that Johnson, the surviving executor, was not
personally served with notice, either of the appellate proceedings in
SECT. II.] FITZSIMMONS V. JOHNSON. 361
the Court of Common Pleas or of the subsequent proceedings in the
Probate Court, which resulted in the judgment sued on; and that,
being a non-resident, and without an attorney of record in the State,
only publication was made for him.
It is now well settled that a personal judgment against a non-
resident, rendered in an original suit, upon constructive notice —
that is, upon notice by publication merely — is an absolute nullity,
and of no effect whatever. Though a State may adopt any rules of
practice and legal procedure she may deem best as to her own citi-
zens, she can adopt none that will give her courts jurisdiction of
non-residents so as to authorize personal judgments against them
without personal service of process upon them.
By personal judgments we mean judgments in personam — as, for
payment of money — in contradistinction from judgments in rem.,
whereby the property of non-residents, situated within the territorial
limits of the State, may be impounded; for when non-residents own
property in a particular State it is subject to the laws of that State,
and may be attached or otherwise brought into custodia legis as
security for the debts of the owners, and actually sold and applied
by direction of the court, without personal service and by construc-
tive notice merely. Pennoyer v. Neff, 95 U. S. 714.
The judgment before us is confessedly a personal judgment.
Hence, if the appellate proceedings in the Court of Common Pleas
and the subsequent proceedings in the Probate Court were original
proceedings, standing upon the 3ame ground with respect to notice
as an original action, that judgment is void for want of jurisdiction
of the person.
The demurrer assumed, and, in sustaining it, the chancellor held,
that the petition in error, by which the cause was removed from the
Probate Court to the Court of Common Pleas, was, in effect, an
original action, and that it could be prosecuted only on notice by
personal service; and that, it appearing that no such notice was
given, the judgment sued upon was null and void.
We do not concur in the view that the petition in error was a new
suit, or, that to entitle petitioner to prosecute the same, she must
have given the defendant therein the same notice required in the
commencement of an original action. In saying this, we are not
unmindful of the fact that many of the authorities speak of a writ
of error, whose office seems to be the same in most of the States as
the petition in error under the Ohio law, as a new suit. Such is the
language of some of the earlier decisions in Ohio. 3 Ohio, 337.
In some of the cases in our own State a writ of error has been called
a new suit (1 Lea, 290; 13 Lea, 151); in others it is said to be in
the nature of a new suit (6 Lea, 83; 13 Leu, 206); and in still
another the court says it ia to be regarded us a new suit. 3 Head,
25. But in no case that we have been able to find, or to which our
attention has been callyd, dors the court decide that a writ of error
362 FITZSIMMONS V. JOHNSON. [CHAP. III.
is a new suit in the sense of being the commencement of an original
action, or that it requires the same character and stringency of noiice
as an original action.
In the very nature of the case a writ of error cannot be an original
action. A writ of error lies alone in behalf of a party or privy to an
original suit already finally determined in the lower court, and it
must run against another party or privy to such original suit. A
writ of error has no place in the law unless there has been an origi-
nal action ; and, where given scope, it is but a suit on the record in
the original case.
The Supreme Court of the United States has several times said
that a writ of error is rather a continuation of a certain litigation
than the commencement of an original action, and we think that such
it is, most manifestly. Cohens v. Virginia, 6 Wheaton, 410; Clark
v. Matthewson, 12 Peters, 170; Nations v. Johnson, 24 Howard, 205;
Pennoyer v. Neff, 95 U. S., 734.
A writ of error is like a new suit, in that it can be prosecuted only
upon notice to the opposite party. But that notice need not be per-
sonal, as in the commencement of an original action; it may be
either personal or constructive, as the State creating the tribunal may
provide. 95 U. S., 734; 24 Howard, 206.
In 1865 Goyer and Johnson submitted themselves to the jurisdic-
tion of the Probate Court of Ohio, for the purpose of settling their
accounts, and then obtained a judgment in their favor. That judg-
ment was subject to review, and, if erroneous, to reversal, by error
proceedings in the Court of Common Pleas. Rev. Stat. Ohio, sect.
6708.
To obtain such revision or reversal, it was incumbent on the com-
plaining party to give Goyer and Johnson, or the survivor of them,
notice. Such notice was, by statute, authorized to be given in any
one of three ways — namely, by service of summons on the adverse
party in person, or by service on his attorney of record, or by publi-
cation. Rev. Stat., 6713.
Goyer being dead, and Johnson being a non-resident, and having
no attorney in the State, publication was duly made at the instance
of petitioner in error. That was all that was required by the law of
Ohio, and we are of opinion that it gave the Appellate Court full
jurisdiction of Johnson's person, and authorized any judgment that
the merits of the case required, so far as he was concerned.
That court had complete power to reverse the judgment of the
Probate Court, if found to be erroneous, and either to render such
judgment as should have been rendered below in the first instance or
to remand the case for further proceedings in the latter court. Rev.
Stat., 6726.
The latter course was pursued, as has already been seen. John-
son, being properly before the Appellate Court by constructive ser-
vice, was chargeable with notice of the reversal and remand of his
SECT. II.] FITZSDIMONS V. JOHNSON. 363
case, and of the subsequent proceedings in the Probate Court, with-
out additional notice by publication or otherwise as to the steps
taken under the procedendo. In that way he had his day in court
when the large judgment was pronounced against hirn, and he is
bound by it the same as if he had been personally served with
process.
That constructive notice of a writ of error to a non-resident party,
when such party was properly brought before the lower court, is
sufficient to bind him by the judgment or decree rendered in the
Appellate Court, was expressly decided in the case of Nations v.
Johnson, 24 Howard, 195. In that case Johnson had sued Nations
in the Chancery Court in Mississippi for some slaves. Decree was
for Nations, aud be afterward removed himself and the slaves to the
State of Texas. Johnson prosecuted a writ of error to the Appellate
Court of Mississippi, giving to Nations notice by publication only.
The Appellate Court reversed the decree of the chancellor and pro-
nounced a decree in favor of Johnson.
Subsequently Johnson sued Nations in one of the District Courts
of the United States, in the State of Texas, on his decree rendered
by the State Court in Mississippi. Nations defended on the ground
that he had not been personally served with notice of the writ of
error to the Appellate Court. That question being decided against
him, not upon the facts but upon the law, in the District Court,
Nations prosecuted a writ of error to the Supreme Court of the
United States, with the result already stated. In the opinion, Mr.
Justice Clifford, speaking for a unanimous court, said: "No rule
can be a sound one which, by its legitimate operation, will deprive a
party of his right to have his case submitted to the Appellate Court;
and where, as in this case, personal service was impossible in the
Appellate Court, through the act of the defendant in error, it must
be held that publication according to the law of the jurisdiction,
is constructive notice to the party, provided the record shows that
process was duly served in the subordinate court, and that the party
appeared and litigated the merits. . . . Common justice requires
that a party, in eases of this description, should have some mode of
giving notice to his adversary; and where, as in this case, the record
shows that the defendant appeared in the subordinate court and
litigated the merits to a liuul judgment, it cannot be admitted that
he can defeat an appeal by removing from the jurisdiction, so as
to render personal service of the citation impossible. On that state
of facts, service by publication according to the law of the jurisdic-
tion and the practice of tin; court, we think, is free from objection,
and is amply sufficient to support the judgment of the Appellate
Court." 24 Howard, 205, 206.
The same rule is announced in Pennoyer '■. Neff, 95 U. S. 734.
Text-writers lay it down as a general rule that jurisdicti nice
acquired over the parties in the lower court may be continued until
364 BUILDING AND INVESTMENT ASSOC. V. HUDSON. [CHAP. Ill
the final termination of the controversy in the Appellate Court by
giving proper notice of the appellate proceedings, and that notice to
a non-resident party by publication merely is sufficient. Freeman on
Judgments, sect. 569; 2 Black on Judgments, sect. 912.
This rule commends itself to all men for its wisdom and justice.
If it did not prevail, a man having an unjust judgment in a subordi-
nate court, might, by removal from that State, cut off, absolutely,
the right of the adverse party to a hearing in the Appellate Court on
writ of error: and, having done so, he might then enforce his unjust
judgment. The adverse party would be powerless in such a case.
He could get relief neither in the courts of the State in which the
judgment was rendered, nor in those of the State to which the other
party had removed; for, in the former jurisdiction, the judgment
would be conclusive upon him, and if he should go to the latter to
relitigate his rights, he would be met and defeated by the previous
adjudication of the same rights. One judgment would control the
other, on the doctrine that the judgment of a competent court in one
State is entitled to the same faith and credit in the courts of every
other State as it would receive in those of the State where rendered ;
which doctrine will be considered hereafter.
It is not to be implied that Johnson and Goyer returned to Ten-
nessee to hold or obtain any supposed advantage, for they were bona
fide citizens of this State all along. But the bona fides of the removal
does not affect the rule. 1
PERMANENT BUILDING AND INVESTMENT
ASSOCIATION v. HUDSON.
Supreme Court of Queensland. 1896.
[Reported 7 Queensland Law Journal, 23.]
Application by the Permanent Building and Investment Associa-
tion, Ltd., to enforce a judgment for £130 9s. 5d., recovered by
them in the Supreme Court of New South Wales, against George
Hudson, of Ipswich, in the colony of Queensland.
In 1887 Hudson, who was then residing in Sydney, bought 190
shares in the plaintiff company, and was duly registered as owner of
the shares. In 1889 he came to reside in Queensland, and from that
year onward he continued to reside in Queensland, paying occasional
holiday visits to New South Wales. In 1896 an action was com-
menced in the Supreme Court of New South Wales against the
defendant for calls due in respect of his shares in the plaintiff com-
pany. The defendant was served with the writ at Ipswich, but did
i See Weaver v. Boggs, 38 Md. 255 ; Elsasser v. Haines, 52 N. J. L. 10, IS Atl.
1095. - Ed.
SECT. II.] BUILDING AND INVESTMENT ASSOC. V. HUDSON. 365
not enter an appearance, and the plaintiffs obtained judgment by
default for £130 9s. 5d.
On the 8th of May leave was granted by Cooper, J., to the plain-
tiffs to issue a summons under s. 22 of the Common Law Process
Act of 1867, calling on the defendant to show cause why the iudg-
ment should not be enforced by the Supreme Court of Queensland.
The summons, which was returnable before the Chief Justice in
Chambers, was adjourned into court. 1
Griffith, C. J. I do not think there is room for any doubt in this
matter. 1 think the law upon it has been free of doubt for the last
ten years. The courts of a country have jurisdiction over the per-
sons within that country. Also, as a matter of practice, they assert
jurisdiction — always under the authority of some statute of their
own country — in their own country, with respect to persons out of
the jurisdiction as to contracts made or acts done within the juris-
diction. That is extremely convenient. It is a power conferred by
their own legislature, and it holds good within their own jurisdic-
tion, but the voice of the legislature does not extend beyond its
jurisdiction. International Law does not, as far as I know, require
any country to recognize the jurisdiction or authority of any foreign
body or tribunal over its citizens, or over any one who was not a
citizen of the country within which that foreign body or tribunal has
jurisdiction. AVrits in New South Wales run as far as the border of
New South Wales, and no further. Beyond that they are mere
pieces of paper — mere notices. In the case of the colonies which
have joined the Federal Council it is different. Their writs in cases
where the cause of action arose in the colony in which the action is
brought, run throughout federated Australia. New South Wales has
not thought fit to join in that federation, and writs from that colony,
as I have said, stop at the border. This judgment, therefore, was
obtained in the Supreme Court of New South Wales against a person
who owed no allegiance to that court. The document served on him
was only a piece of paper, to which, in my opinion, he was in no
way bound to pay attention, and which had no effect in this colony,
although in New South Wales it had ample effect, but only because
the legislature there had said so. The application must be dis-
missed with costs. 2
1 The arguments of counsel are omitted. — Ed.
2 Ace Brisbane Oyster Fishery Co. v. Emerson, Knox (N. S. W.) 80 ; Polack v.
Schumacher, 3 So. Austr. It. 76 ; Bangarusami v. Balasubramanian, Ind. L. R. 13
Mad. 496. — Ed.
366 VAN HEYDEN V. SAUVAGE. [CHAP. III.
VAN HEYDEN v. SAUVAGE.
Civil Court of the Seine. 1894.
[Reported 22 Clunet, 592.]
The Court. By a parol contract of sale, March 11, 1893, at Paris,
Vanderheyden sold Count de Sauvage-Vercourt, with all usual war-
ranties, for 3,000 francs, a saddle horse, to be delivered at the buyer's
house at Emptinne, county of Dinant, Belgium. The very day after
the delivery the buyei asserted that not only did the animal sold pos-
sess none of the qualities represented, but had many serious defects.
All proposals of compromise, however advantageous to the seller,
were checked by the refusal of the latter to take back the horse. In
these circumstances, Sauvage sued Vanderheyden for a rescission of
the sale in the court of his domicile, at Dinant. Vanderheyden
having suffered judgment by default, consented to contest the ques-
tion in the Belgian court and opposed the judgment. As a result
of a new decree, confirmed by a judgment of the court of Liege,
an examination by experts was made, at which Vanderheyden was
present. The experts fully recognized the defects, and declared the
horse absolutely "unfit for the use to which it was destined." Con-
sequently, the court of Dinant rescinded the sale; Vanderheyden
appealed, and the matter is now pending before the court of Liege.
Without waiting the final result of a suit the issue of which he
feared, Vanderheyden, abandoning the first process, sued his adver-
sary in his turn before the court of his own domicile in the present
action to recover the price of the horse. Sauvage prays for a con-
tinuance till the court of Liege shall finally determine the suit pend-
ing before it; but Vanderheyden opposes the motion on the ground
that the plea of litispendance cannot be allowed, since the French
and Belgian courts are independent. The French courts, to be sure,
are not bound by foreign judgments; but a Frenchman is not for-
bidden in an action against him by a foreigner to accept trial before
the court of his adversary's domicile; but by this very acceptance be
has clearly substituted the foreign judges for his own natural judges,
and consequently has attributed to their decision the same effects as a
decision of the court of his own domicile would have. Now Vander-
heyden wishes to turn to the French courts after having pleaded
before the Belgian; that is to say, to litigate the same question suc-
cessively before two courts, so as to take advantage of the chances
of a double process. Such an attempt is allowed neither in equity
nor in law. In fact, it is impossible to allow any process, before
whatever court, French or foreign, it be brought, to be abandoned
at the caprice or at the interest of a party who thus retains in
advance the chance of accepting or of rejecting the decision of the
court according as it may be favorable or the reverse. The accept-
SECT. II.] GIRARD V. TRAMOXTANO. 367
ance of such a rule would as a result give the most shocking advan-
tage to the rash or dishonest party who could thus, on = his own
authority and to his sole profit, nullify a decision which finds his
adversary entitled, and compel the latter to submit to the chances of
a new suit before foreign judges.
In short, two courts of the same sort cannot take cognizance at
the same time of the same suit, though one be French, the other
foreign. Vanderheyden, in accepting Belgian jurisdiction, has at the
same time closed every means of recourse to the jurisdiction of his
own country; after having submitted to trial before the court of
Diuant, been present at the expert examination and taken an appeal
from the decision, it is not now lawful to disregard all its effects,
and to consider the former suit as non-existent. In a word, he has
by his own will eutered into a judicial contract with his adversary,
by virtue of which the Belgian jurisdiction has been and should
remain alone competent to decide the case.
The Court for these reasons declares itself incompetent; declares
Vanderheyden without right to sue, and sends the affair back to the
court which has already taken jurisdiction.
GIRARD v. TRAMONTANE
Court of Appeal of Naples. 1883.
[Reported 12 Clunet, 464.]
In accordance with the terms of Art. 14 of the French Civil Code,
Mr. Tramontano, an Italian subject domiciled in Italy, was sued by
Girard & Co. in the Tribunal of Commerce of the Seine, upon the
balance of an account. Judgment for the plaintiff, and application
to the Court of Appeal of Naples for an exequatur.
The Court. When the execution of a foreign judgment is asked
for in Italy, the first duty of the Italian judges, by Art. 941 of the
Code of Civil Procedure, is to make sure that the judgment was ren-
dered by a court that had jurisdiction. It is usually necessary, to
be sure, in determining this point, to be governed by the law of the
country in which the judgment was rendered (Art. 10 of the prelimi-
nary dispositions of the Civil Code). But the provisions of Art. 14
of the French Civil Code are not sufficient to confer jurisdiction on
the Tribunal of Commerce of the Seine. . . .
This text, to be sure, provides that even a foreigner non-resident
in France may always be cited before a French court upon obliga-
tions toward a Frenchman, though contracted abroad. But this un-
limited power given to the French creditor is manifestly opposed t«»
Art. 12 of the Preliminary Dispositions of the Civil Code. 1 It is
1 "In no case si, all the laws, contracts, or judgments of a foreign country or tin'
provisos of a private contra, I have power to derogate from the laws of this kinedom
368 MASSIE V. WATTS. [CHAP. III.
contrary to the provisions of Art. 105, number 2, of the Code of
Civil Procedure, submitting to Italian jurisdiction suits relative to
obligations performable in Italy, or resulting from contracts made or
acts done in the kingdom. It thus contains a usurpation of juris-
diction that belongs to the Italian courts. It sets up an extravagant
claim of jurisdiction, contrary to the law of nations, and therefore
not to be recognized in any State whose municipal public law it
violates.
It is in vain to urge that a foreigner in contracting with a French-
man, whenever he knows the provisions of Art. 14 of the Code
Napoleon, is regarded as having waived the right of being judged
by his natural judges. For the individual who cannot by his own
will obtain within his own country other judges than those provided
by the laws of the State, cannot, a fortiori, escape the rules of com-
petence established by public international law.
MASSIE v. WATTS.
Supreme Court of the United States. 1810.
[Reported 6 Cranch, 148.]
This was an appeal from the decree of the Circuit Court of the
United States for the District of Kentucky, in a suit in equity
brought by Watts, a citizen of Virginia, against Massie, a citizen of
Kentucky, to compel the latter to convey to the former 1,000 acres of
land in the State of Ohio, the defendant having obtained the legal
title with notice of the plaintiff's equitable title. 1
Marshall, C. J. This suit having been originally instituted, in
the court of Kentucky, for the purpose of obtaining a conveyance
for lands lying in the State of Ohio, an objection is made by the
plaintiff in error, who was the defendant below, to the jurisdiction
of the court by which the decree was rendered.
Taking into view the character of the suit in chancery brought to
establish a prior title originating under the land law of Virginia
against a person claiming under a senior patent, considering it as
a substitute for a caveat introduced by the peculiar circumstances
attending those titles, this court is of opinion, that there is much
reason for considering it as a local action, and for confining it to
the court sitting within the State in which the lands lie. Was this
cause, therefore, to be considered as involving a naked question of
relating to persons, to property, or to obligations, nor from those which in any way
concern the public order and good morals."
1 The statement of facts is omitted. Only so much of the opinion as deals with
the question of jurisdiction is given. — En.
SECT. II.] MASSIE V. WATTS. ^69
title, was it, for example, a contest between Watts and Powell, the
jurisdiction of the Circuit Court of Kentucky would not be sus-
tained. But where the question changes its character, where the
defendant in the original action is liable to the plaintiff, either in
consequence of contract, or as trustee, or as the holder of a legal
title acquired by any species of mala fides practised on the plaintiff,
the principles of equity give a court jurisdiction wherever the person
may be found, and the circumstance, that a question of title may be
involved in the inquiry, and may even constitute the essential point
on which the case depends, does not seem sufficient to arrest that
jurisdiction.
In the celebrated case of Penn v. Lord Baltimore, the Chancellor
of England decreed a specific performance of a contract respecting
lands lying in North America. The objection to the jurisdiction of
the court, in that case, as reported by Vezey, was not that the lands
lay without the jurisdiction of the court, but that, in cases relating
to boundaries between provinces, the jurisdiction was exclusively in
the king and council. It is in reference to this objection, not to an
objection that the lands were without his jurisdiction, that the chan-
cellor says, "This court, therefore, has no original jurisdiction on
the direct question of the original right of boundaries." The reason
why it had no original jurisdiction on this direct question was, that
the decision on the extent of those grants, including dominion and
political power, as well as property, was exclusively reserved to the
king in council.
In a subsequent part of the opinion, where he treats of the objec-
tion to the jurisdiction of the court, arising from its inability to
enforce its decree in rem, he allows no weight to that argument.
The strict primary decree of a court of equity is, he says, in per-
sonam., and may be enforced in all cases where the person is within
its jurisdiction. In confirmation of this position he cites the prac-
tice of the courts to decree respecting lands lying in Ireland and in
the colonies, if the person against whom the decree was prayed be
found in England.
In the case of Arglasse V. Muschamp, 1 Vernon, 75, the defend-
ant residing in England, having fraudulently obtained a rent charge
on 'lands lying in Ireland, a bill was brought in England to set it
aside To an objection made to the jurisdiction of the court the
Chancellor replied: "This is surely only a jest put upon the jurisdic-
tion of this court by the common lawyers; for when you go about to
bind the lands and grant a sequestration to execute a decree, then
they readily tell you that the authority of this court is only to regu-
late a man's conscience, and ought not to affect the estate, but that
this court must agere in personam only; and when, as in this case,
you prosecute the person for a fraud, they tell you that you must not
intermeddle here, because the fraud, though committed here, con-
cerns lands that lie in Ireland, which makes the jurisdiction local,
24
370 MASSIE V. WATTS. [CHAP. III.
and so wholly elude the jurisdiction of this court." The chancellor,
in that case, sustained his jurisdiction on principle, and on the
authority of Archer and Preston, in which case a contract made
respecting lands in Ireland, the title to which depended on the act
of settlement, was enforced in England, although the defendant was
a resident of Ireland, and had only made a casual visit to England.
On a rehearing before Lord Keeper North this decree was affirmed.
In the case of The Earl of Kildare v. Sir Morrice Eustace and
Fitzgerald, 1 Vern. 419, it was determined that if the trustee live in
England, the chancellor may enforce the trust, although the lands lie
in Ireland.
In the case of Toller v. Carteret, 2 Vern. 494, a bill was sustained
for the foreclosure of a mortgage of lands lying out of the jurisdic-
tion of the court, the person of the mortgagor being within it.
Subsequent to these decisions was the case of Penn against Lord
Baltimore, 1 Vez. 444, in which the specific performance of a con-
tract for lands lying in North America was decreed in England.
Upon the authority of these cases, and of others which are to be
found in the books, as well as upon general principles, this court is
of opinion that, in a case of fraud, of trust, or of contract, the juris-
diction of a court of chancery is sustainable wherever the person be
found, although lands not within the jurisdiction of that court may
be affected by the decree.
The inquiry, therefore, will be, whether this be an unmixed ques-
tion of title, or a case of fraud, trust, or contract.
The facts in this case, so far as they affect the question of juris-
diction, are, that, in 1787, the land warrant, of which Watts is now
the proprietor, and which then belonged to Oneal, was placed with-
out any special contract in the hands of Massie, as a common locator
of lands. In the month of August in the same year he located 1,000
acres, part of this warrant, to adjoin a previous location made on
the same day for Robert Powell.
In the year 1793 Massie, as deputy-surveyor, surveyed the lands
of Thomas Massie, on which Robert Powell's entry depended, and
the land of Robert Powell, on which Oneal's entry, now the property
of Watts, depended. On the 27th of June, 1795, Nathaniel Massie,
the plaintiff in error, entered for himself 2,366 acres of land to
adjoin the surveys made for Robert Powell, Thomas Massie, and one
Daniel Stull. The entry of Daniel Stull commences at the upper
corner of Ferdinand Oneal's entry on the Scioto, and the entry of
Ferdinand Oneal commences at the upper corner of Robert Powell's
entry on the Scioto; so that the land of Oneal would be supposed,
from the entries, to occupy the space on the Scioto between Powell
and Stull. Nathaniel Massie's entry, which was made after survey-
ing the lands of Thomas Massie and of Robert Powell, binds on the
Scioto, and occupies the whole space between Powell's survey and
Stull 's survey.
SECT. II.] MASSES V. WATTS. 371
In the year 1796, Nathaniel Massie surveyed 530 acres of Oneal's
entry, chiefly within Stull's survey, and afterwards, in the spring of
1797, purchased Powell's survey. Nathaniel Massie' s entry is sur-
veyed and patented. In 1801 Massie received from Watts, in money,
the customary compensation for making his location.
It is alleged that Nathaniel Massie has acquired for himself the
land which was comprehended within Oneal's entry, and has sur-
veyed for Oneal land to which his entry can by no construction be
extended.
If this allegation be unsupported by evidence, there is an end of
the case. If it be supported, had the court of Kentucky jurisdiction
of the cause?
Although no express contract be made, yet it cannot be doubted
that the law implies a contract between every man who transacts
business for another at the request of that other and the person for
whom it is transacted. A common locator who undertakes to locate
lauds for an absent person is bound to perform the usual duties of
a locator, and is entitled to the customary compensation for those
duties. If he fails in the performance of those duties, he is liable to
the action of the injured party, which may be instituted wherever his
person is found. If his compensation be refused, he may sue there-
for in any court within whose jurisdiction the person for whom the
location was made can be found. In either action the manner in
which the service was performed is inevitably the subject of investi-
gation, and the difficulty of making it cannot oust the court of its
jurisdiction.
From the nature of the business and the situation of the parties,
the person for whom the location is made being generally a non-
resident, and almost universally unacquainted with the country in
which his land is placed, it is the duty of the locator not only to
locate the lands, but to show them to the surveyor. He also neces-
sarily possesses the power to amend or to change the location if
he has sufficient reason to believe that it is for the interest of his
employer so to do. So far as respects the location he is substituted
in the place of the owner, and his acts done bona fide are the acts of
the owner.
If, under these circumstances, a locator finding that the entry he
has made cannot be surveyed, instead of withdrawing it or amend-
ing it so as to render it susceptible of being carried into execution,
secures the adjoining land for himself, and shows other land to the
surveyor which the location cannot be construed to comprehend, it
appears to this court to be a breach of duty, which amounts to a
violation of the implied contract, and subjects him to the action of
the party injured.
If the location be sustainable, and the locator, instead of showing
the land really covered by the entry, shows other land, and appro-
priates to himself tin- land actually entered, this appears to the court
372 WHITE V. WHITE. [CHAP. Ill
to be a species of mala fides which will, in equity, convert him into
a trustee for the party originally entitled to the land.
In either case the jurisdiction of the court of the State in which
the person is found is sustainable.
If we reason by analogy from the distinction between actions local
and transitory at common law, this action would follow the person,
because it would be founded on an implied contract, or on neglect of
duty.
If we reason from those principles which are laid down in the
books relative to the jurisdiction of courts of equity, the jurisdiction
of the court of Kentucky is equally sustainable, because the defend-
ant, if liable, is either liable under his contract, or as trustee. 1
WHITE v. WHITE.
Court of Appeals, Maryland. 1835.
[Reported 7 Gill fr Johnson, 208.]
Buchanan, C. J. The bill in this case was filed for the sale of the
real estate of Abraham White, deceased, and the distribution of the
proceeds among his heirs, after deducting the amount of a subsisting
lien, by mortgage, on a part of it ; on the ground that it will not admit
of an advantageous division, and that it would be to the advantage
of all the parties interested, that it should be sold, which is admitted
by the answers. A tract of land, part of this estate, is stated in the
bill, to lie in the State of Pennsylvania, as to which the chancellor
dismissed the bill for the want of jurisdiction, and decreed a sale of
that portion of the property, which lies in this State, appointing a
trustee for that purpose. And the only question is, whether he
should not also have decreed a sale by the trustee, of the tract of
land in Pennsylvania.
It would be rather an idle thing in chancery, to entertain jurisdic-
tion of a matter not within its reach, and make a decree which it
could have no power to enforce, or to compel a compliance with.
And the absence of that very power is a good test by which to try
the question of jurisdiction. It would be a solecism to say, that the
chancellor has jurisdiction to decree in rem, where the thing against
i Ace. Penn v. Lord Baltimore, 1 Ves. Sr. 444 ; McGee v. Sweeney, 84 Cal.
100, 23 Pac. 1117 ; Cloud v. Greasley, 125 111. 313, 17 N. E. 826 ; Keed v. Keed, 75
Me.' 264 ; Brown v. Desmond, 100 Mass. 267 ; Vreeland v. Vreeland, 49 N. J. Eq.
322, 24 Atl. 551 ; Gardner v. Ogden, 22 N. Y. 327 ; Guerrant v. Fowler, 1 Hen. & M.
5 ; Poindexter v. Burwell, 82 Va. 507.
So a court of equity has jurisdiction to enjoin the conveyance of foreign land:
Frank v. Peyton, 82 Ky. 150 ; and to enjoin the obstruction of a foreign private way :
Alexander v. Tolleston Club, 110 111. 65. — Ed.
SECT. II.] WHITE V. WHITE. 373
which the decree goes, and is alone the subject of, and to be operated
upon by it, is beyond the territorial jurisdiction of the Chancery
Court, and not subject to its authority, and the decree, if passed,
would itself be nugatory for the want of power, or jurisdiction to
give it effect. Chancery can have no jurisdiction where it can give
no relief. Now what jurisdiction has the Chancery Court of Mary-
land over lands lying in a foreign country, or in another State; and
having no jurisdiction of lands so situated, what authority has it to
decree a sale of them, and impart to its trustee authority to go into
such State, or foreign country, to carry its decree into effect, by
making sale of them.
It is true that where the decree sought is in personam, and may be
carried into effect by process of contempt, the Court of Chancery
here may have jurisdiction, although it may affect land lying in
another State, the defendant being in the State of Maryland, as in
a case of trust, or fraud, or of contract. As where a bill is riled
against a person in thi3 State, for the specific performance of a con-
tract, or agreement, relating to land in another State. In such a
case, the decree does not act directly upon the land, but upon the
defendant here, and within the jurisdiction of the court. So where
the land itself that is sought to be affected lies within the State, and
the proceedings are against a person residing out of the State.
But in this case the bill seeks a sale of land in Pennsylvania, not
within the jurisdiction of the Court of Chancery of Maryland; and
the decree if made would not be in personam, but for the sale of the
land, through the instrumentality of a trustee, and could not be
enforced by any process from that court. It is not like the case of
Penn v. Lord Baltimore, 1 Ves. Sr. 444, where the bill was for the
specific performance of articles concerning the boundaries of the then
provinces of Maryland and Pennsylvania, Lord Baltimore the de-
fendant being in England, and subject to the compulsory process of
chancery there. Nor like the other cases to be found in the English
Chancery reports, affecting lands not lying in England, where the
proceedings were in personam, the defendants residing there, and
subject to process of contempt, etc.
Decree affirmed with costs. 1
1 Ace. Watkins v. Holman, 16 Pet. 25 ; Johnson v. Kimbro, 3 Head, 557 ; Gibson
v. Burgess, 82 Va. 650. But see Dunlap v. Byers, 110 Mich. 109, 67 N. W. 1067 ;
Wood v. Warner, 15 N. J. Eq. 81.
Similarly, a court of equity may not order the abatement of a foreign nuisance :
P. v. Central R. R., 42 N. Y. 283 ; nor grant specific performance of a contract to dig
a ditch in a foreign state : Port Royal R. R. v. Hammond, 58 Ga. 523 ; nor declare a
deed of foreign land void: Carpenter v. Strange, 141 U. S. 87; Davis v. Headley, 22
N. J. Eq.. 115 ; but see C v. Levy, 23 Grat. 21. — Ed.
374 LYNDE V. COLUMBUS, ETC. RAILWAY. [CHAP. IIL
LYNDE v. COLUMBUS, CHICAGO AND INDIANA
CENTRAL RAILWAY.
Circuit Court of the United States. 1893.
[Reported 57 Federal Reporter, 993.]
Baker, District Judge. The plaintiff brings this suit as a bond-
holder for whom the trustee has refused to bring suit against the
Columbus, Chicago & Indiana Central Railway Company, Archibald
Parkhurst, trustee, and the Pittsburgh, Cincinnati, Chicago & St.
Louis Railway Company, for the foreclosure of a trust deed or mort-
gage executed by the Columbus, Chicago & Indiana Central Railway
Company to Archibald Parkhurst, as trustee, to secure 1,000 bonds, of
$1,000 each, issued by it, and asking for the sale of its railroad em-
braced in said trust deed, extending from Indianapolis, Ind., to
Columbus, Ohio, together with its franchises, equipments, property,
tolls, and interests, —that is to say, the lands, tenements, heredita-
ments, fixtures, goods, and chattels of the Columbus, Chicago &
Indiana Central Railway Company ; its property, rights, privileges,
interest, and estate of every description and nature ; its rails, ties,
fences, buildings, and erections ; its right of way, cars, engines, tools,
and machinery ; its rents, reservations, and reversions, of every nature,
or so much thereof as lies and is within the State and district of
Indiana. The bill avers that the Pittsburgh, Cincinnati, Chicago &
St. Louis Railway Company claims some interest in the said premises,
and prays that it may be required to make answer to, all and singular,
the allegations and charges contained in the bill, and that said prop-
erty may be decreed to be sold free and discharged from any and all
claims or interest of the parties respondent to the bill.
The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company
has filed a plea alleging, in substance, that the plaintiff herein, as plain-
tiff, brought suit against the defendants herein, as defendants, on the
same bonds and trust deed or mortgage, in the common pleas court of
Franklin County, Ohio ; that said court is a court of general jurisdic-
tion in law and equity ; that the cause was tried, and that the court
found the bonds in question to be valid obligations of the Columbus,
Chicago & Indiana Central Railway Company, and that the plaintiff
was entitled to a decree for their payment ; and the court decreed that
unless the defendant the Columbus, Chicago & Indiana Central Rail-
way Company should, within thirty days, pay, or cause to be paid, the
sum so found due, the mortgage should be foreclosed, and the mort-
gaged property sold, and that upon the sale the purchaser should be
entitled to hold said railway and property free and discharged from the
lien or incumbrance of all the parties to the suit. The plaintiff has set
the plea down for argument, and the question raised is whether the
SECT. II.] LYNDE V. COLUMBUS, ETC. RAILWAY. 375
facts pleaded are sufficient to constitute a bar to the maintenance of
the present suit.
The plaintiff contends that the plea is insufficient because it contains
no averment that either the mortgagor, the Columbus, Chicago &
Indiana Central Railway Company, or the mortgagee, Archibald Park-
hurst, trustee, was brought within the jurisdiction of the court in Ohio
by process personally served, or by appearance in person or by attor-
ney. The plea avers that the said Charles R. Lynde filed his bill of
complaint, denominated by the law of the State of Ohio a " petition,"
against this defendant and its codefendants the Columbus, Chicago &
Indiana Central Railway Company and Archibald Parkhurst, trustee,
and it then proceeds to aver that the cause was heard, and a decree
rendered against all the defendants ; but it fails to show affirmatively
that the court acquired jurisdiction of the persons of the defendants,
either by service of process or bj' appearance.
Pleas in bar, in suits in equity, are not favorites of the law, because
the defendant has other and ample modes of defence open to him.
They are therefore required to be drawn with precision, and must
disclose upon their face a complete defence. The facts necessary to
render the plea an equitable bar to the case made by the bill must
be clearly and distinctly averred, and such plea will not be aided by
argument, inference, or intendment. McCloskey v. Barr, 38 Fed.
Rep. 165. This rule, however, is not to be construed as conflicting
with that other salutaiy rule that legal presumptions ought not to be
stated in a pleading. Steph. PI. (1871) p. 312 et seq. When the facts
are stated from which the law raises a certain legal presumption, it is
not necessary for the pleader to do more, in order to have the benefit
of such legal presumption. In the case of Galpin v. Page, 18 Wall.
350, the rule is thus stated: " It is undoubtedly true that a superior
court of general jurisdiction, proceeding within the general scope of its
powers, is presumed to act rightly. All intendments of law, in such
cases, are in favor of its acts. It is presumed to have jurisdiction to
give the judgment it rendered, until the contraiy appears ; and this
presumption embraces jurisdiction, not only of the cause or subject-
matter of the action in which the judgment is given, but of the parties
also. The former will generally appear from the character of the judg-
ment, and will be determined by the law creating the court, or prescrib-
ing its general powers. The latter should regularly appear by evidence
in the record of service of process upon the defendant, or his appear-
ance in the action. Hut when the former exists the latter will be
presumed. This is familiar law, and it is asserted in all the adjudged
cases. The rule is different with respect to courts of special and
limited authority. As to them, there is no presumption of law in favor
of their jurisdiction. That must affirmatively appear by sufficient evi-
dence or proper averment in the record, or their judgments will be
deemed void on their face."
The judgment in question was rendered by a court having general
376 LYNDE V COLUMBUS, ETC. RAILWAY. [CHAP. III.
jurisdiction in law and equity, and the legal presumption is that the
court had jurisdiction of the parties and subject-matter, and had power
to pronounce the judgment it did ; and this presumption cannot be
overcome, except by averment and proof that it proceeded without
jurisdiction. It is true that, when the record of a former judgment is
set up as establishing some collateral fact involved in a subsequent
litigation, it must be pleaded strictly as an estoppel ; and the rule is
that such pleading must be framed with the utmost precision, and it
cannot be aided by inference or intendment. When, however, a former
judgment or decree is set up in bar of a subsequent action, or as having
determined the entire merits of the controversy, it is not required to be
pleaded with any greater strictness than any other plea in bar, or any
plea in avoidance of the matters set up in the antecedent pleading of
the opposite party. Aurora City v. West, 7 Wall. 82 ; Gray v. Pingry,
17 Vt. 419; Perkins v. Walker, 19 Vt. 144; 1 Greenl. Ev. (12th ed.)
p. 566 ; Shelley v. Wright, Willes, 9. The plea is not bad for failing to
aver that the court had acquired jurisdiction over the parties by service
of process or appearance. If, in truth, the court proceeded to render the
decree in question without having acquired jurisdiction of the defend-
ants, that fact, to avail the plaintiff here, should have been set up by
replication^ instead of setting the plea down for argument. Rogers v.
Odell, 39 N. H. 452; Spaulding v. Baldwin, 31 Ind. 376; Biddle v.
Wilkins, 1 Pet. 686 ; Pennington v. Gibson, 16 How. 65 ; Campe
v. Lassen, 67 Cal. 139, 7 Pac. Rep. 430 ; Vanfleet, Collat. Attack,
§§ 846 and 847, and authorities there cited.
It follows that the sufficiency of the plea must be determined on the
assumption that the court in Ohio had jurisdiction of the defendants
when the cause before it was heard and decided. The cause of action
there was founded on the same bonds and mortgage or trust deed which
constitute the cause of action here. The mortgage or trust deed in
suit was executed by a railroad corporation organized by the consolida-
tion of two corporations, one of which was organized under the laws
of the State of Ohio, and the other under the laws of the State of
Indiana. The consolidated company, presumably, became invested
with all the property and franchises of the constituent corporations.
Its franchise to be a consolidated corporation, and to build, own, and
operate a line of railway extending from Columbus, Ohio, to Indian-
apolis, Ind., is undoubtedly an entirety, while the immovable property
of the company covered by the mortgage has its situs in both States.
It is earnestly insisted that the decree of the Ohio court is binding and
conclusive because the court had jurisdiction of the parties and of the
subject-matter, and that the present suit to foreclose the same mortgage
or trust deed cannot be maintained because by that decree the right of
action growing out of the bonds and mortgage has passed in remjudi-
catam. It is undoubtedly true that courts possessing general chancery
powers have jurisdiction to relieve against fraud, to enforce trusts, and
to compel the specific performance of contracts in relation to immovable
SECT. II.] LYNDB V. COLUMBUS, ETC. RAILWAY.
377
property having its situs elsewhere than in the state or country where
the courts exist, whenever jurisdiction has been acquired, by appear-
ance, or by personal service of process, over the persons on whom the
obligation rests. Penn v. Lord Baltimore, 1 Yes. Sr. 444 ; Earl of
Kildare v. Eustace, 1 Vern. 419 ; Arglasse v. Muschamp, Id. 75 ; Toller
v. Carteret, 2 Vern. 494 ; Massie v. Watts, 6 Cranch, 148 ; Mills v.
Duryea, 7 Cranch, 481 ; Hampton r. McConnell, 3 Wheat. 234 ; Mc-
Gilvray v. Avery, 30 Vt. 538; Davis v. Headley, 22 N. J. Eq. 115;
Dobson v. Pearce, 12 N. Y. 156 ; U. S. Bank v. Merchants' Bank of
Baltimore, 7 Gill, 415 ; Burnley v. Stevenson, 24 Ohio St. 474. In the
case of fraud, trust, or contract, the jurisdiction of a court possessing
general equity powers is sustainable wherever the person to be bound
by the decree is found, though the decree may incidentally affect lands
without its territorial jurisdiction. The decree proceeds in personam,
and is binding on the conscience of the party ; and the court may, by
attachment or sequestration, compel the party to perform that which,
in equity and good conscience, he ought to have done without coercion.
Aequitas agit in personam. Conceding that the court in Ohio had juris-
diction of the parties and of the subject-matter, had it power, by its
decree, to merge the lien of the mortgage on the property embraced
therein, having its situs in Indiana? The Ohio court may compel the
defendants to execute a conveyance or release of the mortgaged prem-
ises in such form as may be necessary to transfer the legal title to the
property according to the law of this State, and such as will be sufficient
to bar an action elsewhere. 1 The plea does not aver that the execu-
tion of any such conveyance or release has been compelled. Until
such conveyance or release has been executed, the lien of the mortgage on
the immovable property embraced in it, situated in this State, remains
unaffected, unless the court in Ohio was clothed with power enabling it
to affect the status of real estate outside of the State which created the
court, by a decree operating in rem.
It is elementary that no sovereignty can extend its process beyond
its own territorial limits, to subject persons or property to its judicial
decisions. Every attempted exertion of authority of this sort beyond
its limits is a mere nullity, incapable of binding such person or property
in any other forum. Story, Confl. Laws (7th ed.), § 539. A suit can-
not be maintained against a person so as absolutely to bind his prop-
erty situated in another sovereignty, nor so as absolutely to bind his
right and title to immovable property whose situs is elsewhere. " It is
true," says Story in his Conflict of Laws (7th ed. § 543), " that some
nations do, in maintaining suits in personam, attempt indirectly, by
their judgments and decrees, to bind property situate in other countries ;
but it is always with the reserve that it binds the person only in their
own courts, in regard to such property. And certainly there can be no
pretense that such judgments or decrees bind the property itself, or the
1 Ace. Mead v. N. Y. H. & N. R. 1!., 45 Conn. 199 ; Eaton v. McCall, 86 Mr. 346,
29 Atl. 1103 ; Union Trust Co. v. R. R., 102 N. Y. 729, 7 N. E. 822. Ed.
378 LYNDE V. COLUMBUS, ETC. RAILWAY. [CHAP. III.
rights over it which are established by the laws of the place where it is
situate." And again he says : "In respect to immovable propert}',
every attempt by any foreign tribunal to found a jurisdiction over it must,
from the very nature of the case, be utterly nugatory, and its decree
must be forever incapable of execution in rem." These principles have
been recognized and acted upon by all courts as having their founda-
tion in reason, and as essential to the peace and security of independent
states. In Watkins v. Holrnan, 16 Pet. 25, it was held that a court of
chancery might decree the conveyance of land in any other State, and
might enforce the decree by process against the defendant, but that
neither the decree itself, nor any conveyance under it, except by the
person in whom the title is vested, could operate beyond the jurisdic-
tion of the court. The same principle is affirmed and acted upon in
Boswell v. Otis, 9 How. 336, and Northern Indiana R. Co. v. Michigan
Cent. R. Co., 15 How. 233. Indeed, no principle is more firmlv settled
than that the disposition of real estate, whether by deed, descent, or
any other mode, must be governed b\ T the laws of the State where the
land is situated. It is argued that, in respect of immovable property
mortgaged by an interstate railway company, a different rule has been
established by the case of Muller v. Dows, 94 U. S. 444. It is con-
tended that the court there held that, as the railroad and its franchise
were an entirety, any court having jurisdiction of the parties and
subject-matter could make a valid decree of foreclosure, which would
operate on the entire railroad property, as well without as within the
State where the decree was pronounced, and that it would completely
merge the lien of the mortgage. What was there said, giving apparent
support to this contention, was rnerelv arguendo, and was not essential
to the judgment pronounced. In that case the Circuit Court of the
United States for the District of Iowa passed a decree of foreclosure
and sale of a railroad extending from a point in Iowa to a point in
Missouri, and owned by a corporation formed by the consolidation of
a corporation of Missouri with a corporation of Iowa. The entire line
was covered by one trust deed, and the suit to foreclose was brought
by the trustee. The mortgagees were also before the court, and the
sale was made by a master at the instance of the trustee. It was held
that the decree was not void, so far as it directed the foreclosure and
sale of that part of the railroad lying in Missouri, and that the trustee
could be required by the court in Iowa to make a deed to the purchaser
in confirmation of the sale. In my judgment, this case does not over-
turn the well-established doctrine that a court in one State cannot pass
a decree which shall operate to change the title to, or merge a lien
upon, immovable property in another State. The title in that case was
transferred by the court compelling the execution of a power of sale,
and not by force of the decree. Mercantile Trust Co. v. Kanawha &
O. Ry. Co., 39 Fed. Rep. 337 ; Farmers' Loan & Trust Co. v. Postal
Tel. Co., 55 Conn. 334, 11 Atl. Rep. 184. The case last cited is
exactly in point. The Postal Telegraph Company, a New York corpo-
SECT. II.] YOUNG V. DREYFUS. 379
ration, mortgaged all its property, vrhich was situated in several States,
including Connecticut and New York, to the plaintiffs, in trust, to
secure the payment of its bonds. Upon a failure to pay the interest,
the plaintiffs brought a suit for a foreclosure in the Supreme Court in
the city of New York. Judgment was rendered for the plaintiffs, pur-
suant to which a referee was appointed, who sold all the property,
including the real estate in Connecticut, and executed a conveyance of
the same to the purchaser. Suit was brought to foreclose the mort-
gage on the Connecticut property, according to the laws aud practice
in that State. The defendant, the Benedict & Burnham Manufacturing
Company, an attaching creditor, appeared, and set up a special defence,
alleging the foreclosure and proceedings in the State of New York.
The defence was held insufficient, on the ground that the decree and
proceedings had thereunder were nugatory as to the real estate situate
in Connecticut. In my judgment, the doctrine of this case presents
the better view, and it must be held that the decree of the Ohio court
did not merge the lien of the mortgage on the real estate in Indiana.
It results from these views that the plea is insufficient, and it is so
ordered, with leave to the defendant to answer within thirty days.
YOUNG v. DREYFUS.
Court of Appeal of Paris. 1885.
[Reported 12 Clunet, 539.]
A company was formed at London in 1864 under the name of "The
Saint-Nazaire Company, Limited." Its principal object was the pur-
chase and resale of vast tracts of land situated in the neighborhood of
the city of Saint-Nazaire, which they proposed to convert into docks,
basins, quays, etc. The capital of the company, made up in accordance
with the English law, was divided into shares of £20 each, £5 payable
upon subscription, and the balance, as the company should need it, on
call by the board of management.
After various vicissitudes, especially its consolidation with a com-
pany formed in Fiance (the " Societe de Commerce de France"), the
English Saint-Nazaire Company was put into liquidation in England,
and Mr. Young was appointed ollicial liquidator by a decree of the
Court of Chancery.
In 1877 Mr. Young, to meet the liabilities of the company, called
upon the shareholders to complete the payment for their shares, amount-
ing to £11 per share. Several shareholders not having satisfied the
call, Mr. Young summoned them all before the Court of Chancery, and
a decree of the Master of the Rools [Rolls?] condemned them to pay
the amounts claimed.
To secure the execution of this decree against the French share-
380 YOUNG V. DREYFUS. [CHAP. III.
holders, Mr. Young brought an action against them, in his own name,
before the Civil Tribunal of the Seine, to have the decree of the Court
of Chancery of December 7, 1877, declared executory in France. By
additional and subsidiary demands alleged to the lower court, Mr.
Young claimed in his own name, in case the tribunal should not de-
clare the English decree executory, that each of the defendants be
adjudged to pay the amounts decreed against them in said decree,
which represented the balances unpaid of the sums subscribed. On
their part, the shareholders set up the lack of jurisdiction of the Eng-
lish court, and, as a result, the nullity of the decree; alleging also, as
to the additional claims, the incompetence of the Civil Tribunal of the
Seine, because "The Saint-Nazaire Compan}', Limited" was a com-
mercial company.
On August 24, 1881, the Civil Tribunal of the Seine rejected the
liquidator's claim. On his appeal, the Court of Paris affirmed the
judgment in the following terms : —
The Court. As to the jurisdiction of the English courts, Article 14
of the Civil Code authorizes a French plaintiff to cite a foreigner before
the French tribunals, even upon obligations contracted in foreign coun-
tries. The object of this provision, containing as it does an exception
to the rule actor forum sequitur rei, is to assure to a Frenchman the
benefit of the national courts. It follows, a fortiori, that a defendant
cannot, contrary to the rules of the common law, be withdrawn from
his natural judges. Foreign courts are therefore, on principle, incom-
petent as concerns him. Nor is the case changed by the terms of
Art. 59, § 5, of the Code - of Civil Procedure, giving jurisdiction, in
the case of partnerships, to the court of the place where the principal
office is established. The provisions of this article govern the com-
petence of French courts onl}' with respect to persons justiciable in
France ; they are not to be extended further. Though the rules of
competence in favor of French citizens are not rules of public order,
and in consequence a Frenchman may waive the benefit of them, such
waiver of a right cannot be presumed, and should be as certain and
explicit as the right itself. In this case it is established neither by the
by-laws of the English company nor by any of the documents produced.
The mere fact of having subscribed to or bought shares in a foreign
company cannot be considered as conferring jurisdiction.
SECT. III.] PENNOYER V. NEFF. 381
SECTION III.
JURISDICTION QUASI IN REM.
PENNOYER v. NEFF.
Supreme Court of the United States. 1878.
[Reported 95 United States, 714.]
Field, J. 1 This is an action to recover the possession of a tract of
land, of the alleged value of $15,000, situated in the State of Oregon.
The plaintiff asserts title to the premises by a patent of the United
States issued to him in 18G6, under the act of Congress of September
27, 1850, usually known as the Donation Law of Oregon. The defend-
ant claims to have acquired the premises under a sheriffs deed, made
upon a sale of the property on execution issued upon a judgment re-
covered against the plaintiff in one of the circuit courts of the State.
The case turns upon the validity of this judgment.
It appears from the record that the judgment was rendered in Feb-
ruary, 1866, in favor of J. H. Mitchell, for less than $300, including
costs, in an action brought by him upon a demand for services as an
attorney ; that, at the time the action was commenced and the judgment
rendered, the defendant therein, the plaintiff here, was a non-resident
of the State ; that he was not personally served with process, and did
not appear therein ; and that the judgment was entered upon his de-
fault in not answering the complaint, upon a constructive service of
summons by publication.
The Code of Oregon provides for such service when an action is
brought against a non-resident and absent defendant who has property
within the State. It also provides, where the action is for the recovery
of money or damages, for the attachment of the property of the non-
resident. And it also declares that no natural person is subject to the
jurisdiction of a court of the State, " unless he appear in the court, or
be found within the State, or be a resident thereof, or have property
therein, and in the last case only to the extent of such property at the
time the jurisdiction attached." Construing this latter provision to
mean, that in an action for money or damages where a defendant does
not appear in the court, and is not found within the State, and is not a
resident thereof, but has property therein, the jurisdiction of the court
extends only over such property, the declaration expresses a principle
of general, if not universal, law. The authority of every tribunal is
necessarily restricted by the territorial limits of the State in which it is>
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 <lo.s not require separate
422 CHICAGO, ETC. RAILWAY V. STURM.' [CHAP. III.
consideration. Besides there is no fact of change of domicile in the
case. The plaintiff in error was not temporarily in Iowa. It was
an Iowa corporation and a resident of the State, and was such at the
time the debt sued on was contracted, and we are not concerned to
inquire whether the cases which decide that a debtor temporarily
in a State cannot be garnished there, are or are not justified by
principle.
The proposition that the situs of a debt is where it is to be paid,
is indefinite. "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
everywhere." 2 Parsons on Contracts, 8th edition, 702. The debt
involved in the pending case had no "special limitation or provision
in respect to payment." It wa3 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 inevi-
table effect from the nature of transitory actions and the purpose of
foreign attachment laws if we would enforce that purpose. Embree
v. Hanna, 5 Johns. 101; Hull v. Blake, 13 Mass. 153; Blake v. Wil-
liams, 6 Pick. 286; Harwell v. Sharp, 85 Georgia, 124; Harvey v.
Great Northern Railway Co., 50 Minnesota, 405; Mahany v. Kephart,
15 W. Va. 609; Leiber v. Railroad Co., 49 Iowa, 688; National Fire
Ins. Co. v. Chambers, 53 N. J. Eq. 468; Holland v. Mobile & Ohio
Railroad, 84 Tenn. 414; Pomeroy v. Rand, McNally, & Co., 157
Illinois, 176; Berry Bros. v. Nelson, Davis, & Co., 77 Texas, 191;
Wyeth Hardware Co. v. Lang, 127 Missouri, 242; Howland v. Chi-
cago, Rock Island, &c. Railway, 134 Missouri, 474.
Mr. Justice Valentine also expressed the view that "if a debt is
exempt from a judicial process in the State where it is created, the
exemption will follow the debt as an incident thereto into any other
State or jurisdiction into which the debt may be supposed to be
carried." For this he cites some cases.
It is not clear whether the learned justice considered that the doc-
trine affected the jurisdiction of the Iowa courts or was but an
incident of the law of situs as expressed by him. If the latter, it
has been answered by what we have already said. If the former,
it cannot be sustained. It may have been error for the Iowa court
to have ruled against the doctrine, but the error did not destroy
jurisdiction. 134 Missouri, 474.
. But we do not assent to the proposition. Exemption laws are not
a part of the contract; they are part of the remedy and subject to
the law of the forum. Freeman on Executions, sec. 209, and cases
cited; also Mineral Point Railroad v. Barron, 83 Illinois, 365; Car-
son v. Railway Co., 88 Tennessee, 646; Couley v. Chilcote, 25 Ohio
St. 320; Albrecht v. Treitschke, 17 Nebraska, 205; O'Connor v.
Walter, 37 Nebraska, 267; Chicago, Burlington, &c. Railroad v
SECT. III.] EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. 423
Moore, 31 Nebraska, 629; Moore v. Chicago, Rock Island, &c. Rail-
road, 43 Iowa, 385; Broadstreet v. Clark, D. & C. M. & St. Paul
Railroad, Garnishee, 65 Iowa, 670; Stevens v. Brown, 5 West Vir-
ginia, 450. See also Bank of United States v. Donnally, 8 Pet.
361; Wilcox v. Hunt, 13 Pet. 378; Townsend v. Jemisou, 9 How.
407; Walworth v. Harris, 129 U. S. 365; Penfield v. Chesapeake,
Ohio, &c. Railroad, 134 U. S. 351. As to the extent to which lex
fori governs, see Conflict of Laws, 571 et seq.
There are cases for and cases against the proposition that it is the
duty of a garnishee to notify the defendant, his creditor, of the
pendency of the proceedings, and also to make the defence of exemp-
tion, or he will be precluded from claiming the proceedings in
defence of an action against himself. We need not comment on the
cases or reconcile them, as such notice was given and the defence
was made. The plaintiff in error did all it could and submitted only
to the demands of the law.
In Broadstreet v. Clark, 65 Iowa, 670, the Supreme Court of the
State decided that exemption laws pertained to the remedy and were
not a defence in that State. This ruling is repeated in Willard v„
Sturm, 98 Iowa, 555, and applied to the proceedings in garnishment
now under review.
It follows from these views that the Iowa court had jurisdiction,
and that the Kansas courts did not give to the proceedings in Iowa
the faith and credit they had there, and were hence entitled to in
Kansas.
The judgment is reversed and the case remanded for further pro-
ceedings not inconsistent with this opinion. 1
EINWOLD v. THE GERMAN WEST AFRICAN COMPANY.
Supreme Court of the Cape of Good Hope. 1887.
[Reported 5 Juta, 86.]
This was a motion to attach certain goods belonging to the German
West African Company to found jurisdiction.
The company consisted of Germans, and was established at Berlin,
and a trading expedition had been fitted out by them under the direc-
tion of Baron von Steineker, and the plaintiff, who was also a German,
had been engaged upon the expedition. The goods had been sent to
Cape Town, where a vessel was to be chartered to carry them to Wal-
wich Bay. From there the expedition was to proceed to Ovampoland
— independent territory — where a station was to be erected, and cer-
i Ace. Cross v. Brown, 19 R. I. 220, '■'>■■'> 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,
<i7l • Seine "1 Mav. 1897 (25 CJunet, 111).
''^general rule that a divor an be granted only in the country to wh h
the parties owe allegiance prevails generally in Europe. Pans, 28 May, 1884 (11
492 IN RE W'S MARRIAGE. [CHAP. III.
In re W'S MARRIAGE.
Supreme Court of Austria. 1896.
[Reported 25 Clunet, 385.]
In a complaint filed May 3, 1892, in the Court of First Instance of
Prague, criminal session, Prince Francis- Victor B. alleged that on the
6th of October, 1878, at Nizbor, Bohemia, he had married Marie K.
according to the Roman Catholic forms ; and that by a decision of the
County Court of Karolinenthal, on July 12, 1890, a judicial separation
had been decreed between them. Madame B. had then abjured the
Catholic religion and entered the Unitarian Church, and on the 28th of
November, 1891, at Klausenburg, Transylvania, had contracted a second
marriage with Leopold W., formerly domiciled at C, in the county of
Karolinenthal. At the time of filing this complaint, Francis- Victor B.
prayed the court to decide whether the marriage between himself and
Marie K. should be regarded as still existing.
A criminal suit was instituted on complaint of the Imperial Proctor.
It was found upon investigation that Marie B. and Leopold W. had
renounced their Austrian nationality. In accordance with a decree of
the Hungarian Minister of the Interior, November 9, 1891, Leopold W.,
adopted by Alexander S., acquired Hungarian nationality; Marie B.,
adopted by Joseph F., did the same by decree of the same Minister,
dated October 28, 1891. According to the evidence of the priest of
Klausenburg, Marie K., wife of B., inhabitant of that village, was on
September 28, 1891, received into the Unitarian Church after having
abjured the Roman Catholic religion. A certificate of the Burgomaster
of Klausenburg, November 28, 1891, proved that Leopold W. was a
citizen of Klausenburg. The Superior Ecclesiastical Court of Klausen-
burg, November 27, 1891, affirmed the judgment of the Inferior Eccle-
siastical Court of November 19, 1891, which had pronounced a divorce
Clunet, 623) ; Seine, 10 May, 1897 (25 Clunet, 115) ; Athens, 1897 (25 Clunet, 962) ;
Milan, 15 Feb. 1876 (3 Clunet, 220); Sweden, 14 Aug. 1893 (21 Clunet, 602 ; but see
Sweden, 28 Feb. 1894, 22 Clunet, 191).
In some of these states a divorce will be granted to a domiciled foreigner if he
proves that full recognition will be given to the divorce in the country to which he
owes allegiance. Antwerp, 16 March, 1895 (23 Clunet, 655) ; Geneva, 26 Nov. 1898
(26 Clunet, 876); Trib. Fed. Switz. 1898 (26 Clunet, 191); Genoa, 7 June, 1894 (25
Clunet, 412) ; Monaco, 17 May, 1895 (23 Clunet, 913).
In other states of Europe the domicile of the parties, or of the defendant, is enough
to give jurisdiction for divorce. German Empire, 19 June, 1883 (11 Clunet, 307) ; Lux-
emburg, 5 Jan. 1887 (14 Clunet, 674) ; Netherlands, 28 May, 1897 (26 Clunet, 869).
In Austria the state of domicile has jurisdiction if the parties both consent.
Supreme Court, 7 March, 1883 (15 Clunet, 128); 4 Feb. 1891 (18 Clunet, 999).
In France and Switzerland incompetence to pronounce a divorce between foreigners
is due solely to defect of personal jurisdiction; objection must be set up by the defend-
ant in limine, or he cannot object. Seine, 5 June, 18Q1 (19 Clunet, 194) ; Besancon,
18 Dec. 1896 (25 Clunet, 355) ; Algiers, 1 Feb. 1897 (25 Clunet, 352) ; Geneva, 6 May,
1876 (3 Clunet, 227). — Ed.
SECT. IV.] IN RE W'S MARRIAGE. 493
between Marie K. and her husband Francis-Victor B., and had autho-
riypd the former to marry again.
Acting to a certificate of the Evangelical minister of Klausenbuvg
Le i V a member of the Evangelical Church, domiciled a Klaus-
^and Marie K., a member of ^^Unitarian Church d.orced
from her former husband, were married November 29, 1891 the cei-
ficat * add 1 that the marriage took place in the Evangehca Church
^ not according to usage, in the Unitarian «^e £
of the latter church was ignorant of German ; . ^J^^^^
K. had left the Unitarian Church to embrace the Evamgelical je^n
The administrator of the Circle of Klausenburg attested, b) ^itifacate
ine aamnuhu Leopold W. is a citizen of Klausen-
dated November 18, 1898, hat ^^ Administrator of the
burg and has lived there foi two jears. ±u , . ., lft ,001 that
District of Kuttenberg attested, by certificate of Ap 10 1894 tha
Francis-Victor B. has given up his Austrian nationa ^^ M *££
liner in Hungary. Bv decree of the Hungarian Minister of the Intenor
dated Ju y Wl894, Francis-Victor B. was naturalized in Hungary ;
according to a certificate of the Unitarian Ecclesiastical Court of Buda-
pest belief t the Roman Catholic Church April 9, 18 94 and embraced
the Unitarian faith. In accordance with a judgment of the Infeiior
UniS^n Court, affirmed on appeal, a divorce was Pounced between
Fiancis-Victor B. and his wife, and the former was allowed to marry
^ain He declared that he had no legal cause of complaint against
Marie K., and recognized the validity of her second marriage.
By a decision of January 24, 1893, the Court of ***£?£«
Prague decided that it had jurisdiction to pass on the validity of the
triage between Marie B. and Leopold W. ; and ^ ^gme-t O
December 26, 1895, it declared the marriage null. 1 . . . B } a judgment
of TprU 8, 1896, the Court of Appeal of Prague affirmed the decision.
.Upon a writ of error the Supreme Court, on October 20, 1896,
rendered the following decision. Hpolared
The Court. The judges of the lower courts ^have nghtiy declared
null, in the countries governed by the Civil Code of J™1^
Marie KYs second marriage. It is wrong to object thai ; the Austoan
courts cannot pass upon this question, because Leopold W. and Mane
K are foreigners and do not belong to the Catholic Church, since they
Llojured'their Austrian nationality and their Catholic Mjfcgoo be-
fore their marriage, and the marriage was contracted abroad. I he
question is really not whether this marriage was contracted according
?othe regular forms required by the Hungarian law, but simply what
effects thl marriage can produce in countries governed by the Austrian
ctuCode, especially as regards family right* .and ^e ^ntsof sueoe -
sion. For the following reasons the opinion of the Couit of Appeal
^1 G Franct B. and Marie K. were married, at a time when both were
of Au!trian C nation,,!,, and belonged to the Roman Ca^religion,
in the church of Nizbor, according to the Roman Catholic forms.
i The opinions of the lower courts are omitted. — Ed.
494 IN RE W'S MARRIAGE. [CHAP. Ill,
2. The marriage has not up to this time been dissolved according to
the rules laid down in the Civil Code ; the spouses have simply obtained
a judicial separation, pronounced July 12, 1890, b}- the County Court
of Karolinenthal.
3. A short time after this separation, Marie K., having abjured the
Austrian nationality and the Catholic religion to embrace the Hungarian
nationality and the Unitarian religion, contracted a new marriage with
Leopold W. at the Evangelical Church in Klausenburg.
4. Finalby, Francis B. and Leopold W. both own landed estates at
K., district of Karolinenthal, as to which they are subject to the juris-
diction and the provisions of the Austrian law.
It is doubtless averred that the ecclesiastical courts of Klausenburg
had declared the marriage between Francis B. and Marie K. dissolved,
and have authorized the latter to marry again. But, for one thing,
these decisions affect Marie K. alone ; for another, at the time of their
marriage Francis- Victor B. and Marie K. belonged to the Catholic
religion, and by the terms of § 111 of the Civil Code a marriage of that
kind cannot be dissolved. This section is the more applicable to this
case because at the time the judgments were given, Francis B. still
belonged to the Austrian nationality, and as a result the Austrian
courts alone could take jurisdiction of a suit for the dissolution of his
marriage. Later, it is true, in 1894 or 1895, Francis-Victor B. himself
abjured his Austrian nationality to become an Hungarian, and then
abjured the Roman Catholic religion to embrace the Unitarian ; that he
obtained a judgment of the ecclesiastical court dissolving his marriage
with Marie K. and authorizing him to marry again ; and finally that he
declared that he considered his wife's second marriage valid. But all
these things are insufficient to justify the abandonment of the official
inquiry set on foot by the Austrian decree, still in force, of August 23,
1819. For, 1, the laws of marriage have their foundation in public
policy. 2. The marriage contracted October 30, 1878, according to
the Catholic form, in the church of Nizbor, between Francis- Victor
B. and Marie K., ought, in Austria, to be considered in full force.
3. The question of the validity of this marriage should be dealt with
solely according to Austrian law ; and the decisions rendered in this
case by the ecclesiastical courts are foreign judgments without force
here. 4. Since no Austrian court has declared the marriage between
Francis-Victor B. and Marie K. at an end, it continues in existence.
5. The judicial separation between them, pronounced July 12, 1890.
by the County Court of Karolinenthal, is not transformed into a divorce
by the mere fact that the spouses have abjured the Catholic religion
and entered the Protestant church. 6. According to Austrian law,
especially § 93 of the Civil Code, spouses, even upon agreement between
them, are not permitted to dissolve their marriage by their own will.
7. The consequences and legal effects of the foreign marriage between
Leopold W. and Marie K. ought, as between the latter and her first
husband, to be determined according to the situation as it was at
SECT. IV.] TIRVEILLOT V. TIRVEILLOT. 495
the moment of the second marriage. 8. At that time, Francis-Victor
B- was still an Austrian citizen; furthermore, be, as well as Leopold
AV., possessed landed estates in Austria ; both had their domicile there.
The competence of the court of Prague is the clearer, because Francis-
Victor B., in the petition addressed to the Court of First Instance of
Prague, praying for an inquiry, described himself as belonging to the
Catholic religion, and as an Austrian citizen domiciled within the dis-
trict of the court. Marriage, as the foundation of the family, should be
the union of one man with one wife. This principle is recognized by
the Austrian Civil Code, for § 62 provides that " a man can at one time
have but one wife, and a woman but one husband ; and any person who,
having been once married, desires to contract a new marriage should
establish the dissolution of the marriage." And again § 111 provides:
" Marriage legally contracted between Catholics cannot be dissolved
save by the death of one party, and is therefore indissoluble, even if
but one of the parties belongs, at the time of the marriage, to the
•Catholic Church." The last provision is to be applied, according to a
ministerial circular of July 14, 1854 (Bulletin of Laws, no. 193), even
in a case where after the marriage the spouses, or one of them, are
converted to the Protestant religion. The statutory provisions have
not been modified by the laws of May 25, 1868 (Bulletin of Laws,
no. 47), and of April 9, 1870 (Bulletin of Laws, no. 51).
It follows from these facts that at the time of Marie K.'s second
marriage the dissolution of her first marriage had not taken place in
Austria; her second marriage was therefore null, according to the
terms of §§ 62 and 111 of the Civil Code, in all countries governed by
the Austrian Civil Code. 1
TIRVEILLOT v. TIRVEILLOT.
Civil Tribunal of the Seine. 1898.
[Reported 25 Clunet, 927.]
The Court. Mme. Tirveillot has filed against her husband a petition
for judicial separation, and to protect her eventual rights, pending
the litigation, she has attached certain property ; Tirveillot moves to
dissolve the attachments. These questions are connected, and should
be considered together.
As to the judicial separation, Tirveillot pleads to the jurisdiction of
1 Ace. Austria Supr. Ct. 9 Dec. 1885 (13 Clunet, 471) ; Paris, 14 March, 1889
<16 Clunet, 463).
Where one spouse is naturalizcil, the other retaining his or her former allegiance,
French jurisprudence is uncertain whether the former may obtain a valid divorce in
the state of his new allegiance. That he may, see Tunis, '21 March, 1892 (19 Clunet,
933); Algiers, 13 Dec. 1897 (25 Clunet, 723). That he may not, see Nice, 9 Dec. 1896
(21 Clunet, 333). — Ed.
496 TIRVEILLOT V. TIRVEILLOT. [CHAP. IIL
the court on the ground that he became before his marriage a natu-
ralized American citizen, and by the marriage conferred his own
nationality on his wife ; and the American courts thus have jurisdic-
tion of the present question. Tirveillot proved that several years
ago he left France to make his home in America, without the intention
of returning ; and on his application he was by the competent au-
thority naturalized as an American citizen ; this was known to Mme.
Tirveillot when she married the defendant, January 21, 1876, at the
New York City Hall, according to the American forms. She herself
was so sure of her husband's foreign nationality, and therefore of hers,
that she set up a plea to the jurisdiction when the defendant's father, in
1878, filed against her in this court a petition for nullity of the mar-
riage. ... It is certain that for more than twenty years, with the
exception of several journeys to Europe made necessary by family
affairs, Tirveillot has always lived in the United States of America,
where he had his principal dwelling ; since his naturalization he has
never had a real domicile in France ; he shows that it is possible for
the petitioner to bring her suit in an American court ; indeed, he has
himself instituted a suit for divorce before the Marton Count}' Court
in the United States.
As to alimony : laws of the police and of safety bind all who live
in the country. Although declaring itself without jurisdiction to pro-
nounce a judicial separation, this court may take provisionally all
necessary measures for the safety of the wife and the preservation of
her property. We may allow alimony sufficient for her immediate
needs and for the expenses she will immediately incur as a result of
being required to bring her suit before a competent court.
As to expenses of litigation : the prayer for an allowance of litiga-
tion expenses is closely bound up with the principal suit ; it belongs
to the court which has jurisdiction of the substantial suit to determine
this request.
As to the dissolution of attachment: since Mme. Tirveillot has made
a regular attachment pendente lite by authority of court, and it falls
within the class of cases where the court ma}- authorize provisory
measures, the attachment should be maintained.
For these reasons, the suits are joined, and disposed of in this single
judgment: the court declares itself without jurisdiction to pass on
Mme. Tirveillot's petition for judicial separation : and as to the pro-
visory measures, orders Tirveillot to pay his wife alimony at the rate
of three hundred francs a month, in advance; maintains the attach-
ment ; and declares itself incompetent to allow the petitioner the
expenses of litigation. Orders Mme. Tirveillot to pay the costs of the
petition for judicial separation, and Tirveillot to pay those of the appli-
cation to dissolve the attachment.
PART II.
REMEDIES.
CHAPTER IV.
RIGHT OF ACTION.
RAFAEL v. VERELST.
Common Pleas. 1776.
[Reported 2 William Blackstone, 1055.]
This case was tried before Lord Chief Justice De Grey, by a special
jury in London, at the sittings in Michaelmas Term, when they found a
special verdict to the following effect : That the plaintiff was an Ar-
menian merchant and a native of Ispahan — had for some years
resided in Bengal; but in March, 1768, and before, had been resident
at Fyzabad, the capital of the province of Owd, in the dominions of the
Nabob Sujah al Dowlah, and part of the empire of Indostan, for the
purpose of trading there, both on his own account, and as agent to some
English merchants. That the defendant was President of Bengal
under the East India Company, and that a battalion of the company's
troops, being 600 men and upwards, were stationed at Fyzabad under
the command of Captain Harper ; and another brigade, commanded by
Sir Robert Barker, was stationed at Illahabad, the then residence of
the Mogul Shah Allum. That the battalion at Fyzabad were in the
pay of the East India Company, and had been stationed there in 1766,
at the request of the Nabob, from whom they received additional pay.
That in March, 1768, the plaintiff was seized and imprisoned at Fyza-
bad (by order of the Nabob) b}' some soldiers of Captain Harper's
battalion, and conveyed to Muxadabad, the capital of Bengal, and
there detained for two months, till August, 1768. And that the said
arrest and imprisonment were by the means and procurement of the de-
fendant. That the Nabob was constitutionally independent of the East
India Company, but in ordering the said arrest and imprisonment was
under the awe and influence of the defendant, and acted contrary to his
own inclination, being fearful of offending him. That the civil govern-
ment of Bengal is carried on in the nam-' of the Nabob of Bengal, but
the real and effective powers thereof are in the East India Company, and
32
498 RAFAEL V. VERELST. [CHAP. IV.
also the revenues, paying a stipend to the said Nabob of Bengal, and
other officers, for the support of their rank and dignity. That the im-
prisonment in the province of Bengal was by the procurement of the
defendant, and was a continuation of that made in the province of
Owd. And if, upon the whole, the defendant is guilty of the whole
trespass, they assess £4000 damages ; if only of that in Bengal, then
only £3000 ; if only of that in Owd, £1000 ; and conclude to the judg-
ment of the court. 1
De Grey, C. J. In the present case there are some things found by
the special verdict, which have not, nor cannot, be insisted on as ma-
terial in excuse of the defendant. As, 1. That the plaintiff is an alien ;
for this is no objection in personal actions; 1 Atk. 51. 2. That the
defendant was president or governor of Bengal ; he not having justified
specially under that authority. 3. The place where the imprisonment
happened ; viz. the dominions of a foreign prince. Crimes are in their
nature local, and the jurisdiction of crimes is local. And so as to the
rights of real property, the subject being fixed and immovable. But
personal injuries are of a transitory nature, and sequuntur forum rei.
And though in all declarations of trespass, it is laid "contra pacem
Regis" yet that is only matter of form, and not traversable. But
the great doubt is, whether, when an injurious act is committed by
color of juridical authority, or by the order of an absolute prince, such
act can be a trespass there, where it is done, — or here, where it is not
done. I shall say nothing as to the nature of the Nabob's government,
or to the position, that the commands of absolute princes do of course
legalize their acts. But I consider the Nabob as not being the actor in
this case ; but the act to be done, in point of law, by those who pro-
cured or commanded it ; and in them it may doubtless be a trespass.
Sujah Dowla was a mere instrument. He acted not from any motives
of his own, but gave way through awe and fear. If, in the doing of an
act, there be several intervening agents, and one happens not to be
amenable, will it be said that all the rest are excused ? Suppose it the
very act of the Nabob, who lends himself to the defendant's will, and
undergoes a voluntary servitude to his pleasure, —the accidental cir-
cumstances of such a man shall not exempt the rest, who concur in
the act. It is laid down in Foster, 125, that procuring a felony to be
committed makes an accessory to the felony ; and I take it to be a set-
tled rule, that whatever makes an accessory in felony will make a
principal in trespass. Since, therefore, the jury have found the pro-
curement of the defendant, it follows that he is liable as a principal, for
this trespass.
Gould, J., of the same opinion, and cited the Earl of Salop's case,
9 Rep. 42.
Blackstone, J., of the same opinion. The finding of this verdict
has removed all former doubts. It not only finds the imprisonment to
have been committed by the means and procurement, but by the com-
1 Arguments of counsel are omitted. — Ed.
CHAP. IV.] MOSTYX V. FABRIGAS. 499
mand, nay, ever, the compulsion of the defendant. The Nabob acted
" contrary to his own inclination," through fear of offending the de-
fendant, and under his awe and influence. After such a finding, there
is no room for argument. The Nabob is a mere machine, — an instru-
ment and engine of the defendant.
Nares, J., of the same opinion, and cited Salk. 636, 640; 2 Cro.
130 ; Carthew, 66.
Judgment for the plaintiff for the whole damages.
MOSTYN v. FABRIGAS.
King's Bkxch. 1775.
[Reported Cowper's Reports, 161.]
This was an action of trespass, brought in the Court of Common
Pleas by Anthony Fabrigas against John Mostyn, for an assault and
false imprisonment ; in which the plaintiff declared, that the defendant
on the first of September, in the year 1771, with force and arms, &c,
made an assault upon the said Anthon) - , at Minorca (to wit) at Lon-
don aforesaid, in the parish of St. Mary le Bow, in the ward of Cheap,
and beat, wounded, and ill-treated him, and then and there imprisoned
him, and kept and detained him in prison there for a long time (to
wit) for the space of ten months, without any reasonable or probable
cause, contrar)' to the laws and customs of this realm, and against
the will of the said Anthon\*, and compelled him to depart, from
Minorca aforesaid, where he was then dwelling and resident, and
carried, and caused to be carried, the said Anthony from Minorca
aforesaid, to Carthagena, in the dominions of the King of Spain, &c,
to the plaintiffs damage of £10,000.
The defendant pleaded 1st. Not guilt)' ; upon which issue was
joined. 2dly. A special justification, that the defendant at the time,
&c. , and long before, was governor of the said island of Minorca,
and during all that time was invested with, and did exercise all the
powers, privileges, and authorities, civil and military, belonging to
the government of the said island of Minorca, in parts beyond the
seas; and the said Anthony, before the said time when, &c. (to wit)
on the said first of September, in the year aforesaid, at the island of
Minorca aforesaid, was guilty of a riot, and was endeavoring to
raise a mutiny among the inhabitants of the s:iid island, in breach of
the peace : whereupon the said John so being governor of the said
island of Minorca as aforesaid, at the said time, when, &c, in order
to preserve the peace and government of the s:ii<l island, was obliged
to, and did then and there order the said Anthony to be banished
from the said island of Minorca ; and in order to banish the said
Anthony, did then and there gently lay hands upon the said Anthony,
and did then and there seize and arrest liini, and did keep and detain
500 MOSTYN V. FABKIGAS. [CHAP. IV.
the said Anthony, before he could be banished from the said island,
for a short space of time (to wit) for the space of six days, then next
following ; and afterwards, to wit, on the 7th of September, in the
year aforesaid, at Minorca aforesaid, did carry, and cause to be car-
ried, the said Anthony, on board a certain vessel, from the island of
Minorca aforesaid, to Carthagena aforesaid, as it was lawful for him
to do, for the cause aforesaid ; which are the same making the said
assault upon the said Anthony, in the first count of the said declaration
mentioned, and beating, and ill-treating him, and imprisoning him, and
keeping and detaining him in prison for the said space of time, in the
said first count of the said declaration mentioned, and compelling the
said Anthony to depart from Minorca aforesaid, and carrying and
causing to be carried the said Anthony from Minorca to Carthagena,
in the dominions of the King of Spain, whereof the said Anthony has
above complained against him, and this he is ready to verify ; where-
fore he prays judgment, &c, without this, that the said John was
guilty of the said trespass, assault, and imprisonment, at the parish of
St. Mary le Bow, in the ward of Cheap, or elsewhere, out of the said
island of Minorca aforesaid. Replication de injuria sua propria
absq. tali causa. At the trial the jury gave a verdict for the plaintiff,
upon both issues, with £3000 damages, and £90 costs. 1
Lord Mansfield. . . . The next objection which has been made is
a general objection, with regard to the matter arising abroad ; namely,
that as the cause of action arose abroad, it cannot be tried here in
England.
There is a formal and a substantial distinction as to the locality of
trials. I state them as different things : the substantial distinction is,
where the proceeding is in rem, and where the effect of the judgment
cannot be had, if it is laid in a wrong place. That is the case of all
ejectments, where possession is to be delivered by the sheriff of the
county ; and as trials in England are in particular counties, the officers
are county officers ; therefore the judgment could not have effect, if
the action was not laid in the proper county.
With regard to matters that arise out of the realm, there is a sub-
stantial distinction of locality too ; for there are some cases that arise
out of the realm, which ought not to be tried anywhere but in the
country where they arise; as in the case alluded to, by Sergeant
Walker: if two persons fight in France, and both happening casually
to be here, one should bring an action of assault against the other, it
might be a doubt whether such an action could be maintained here :
because, though it is not a criminal prosecution, it must be laid to be
against the peace of the King ; but the breach of the peace is merely
local, though the trespass against the person is transitory. Therefore,
without giving any opinion, it might perhaps be triable only where
both parties at the time were subjects. So if an action were brought
1 Only so much of the case as involves the question of a right of action is
given. — Er
CHAP. IV.] MOSTYN V. FABRIGAS. 501
relative to an estate in a foreign country, where the question was a
matter of title only, and not of damages, there might be a solid
distinction of locality.
But there is likewise a formal distinction, which arises from the
mode of trial : for trials in England being by jury, and the kingdom
being divided into counties, and each county considered as a separate
district or principality, it is absolutely necessary that there should be
some county where the action is brought in particular, that there
ma}' be a process to the sheriff of that county, to bring a jury from
thence to try it. This matter of form goes to all cases that arise
abroad : but the law makes a distinction between transitory actions
and local actions. If the matter which is the cause of a transitory
action arises within the realm, it ma}' be laid in any county, the
place is not material ; and if an imprisonment in Middlesex, it ma}'
be laid in Surrey, and though proved to be done in Middlesex, the
place not being material, it does not at all prevent the plaintiff recov-
ering damages : the place of transitory actions is never material, except
where by particular acts of parliament it is made so ; as in the case
of churchwardens and constables, and other cases which require the
action to be brought in the county. The parties, upon sufficient
ground, have an opportunity of applying to the court in time to change
the venue; but if they go to trial without it, that is no objection. So
all actions of a transitory nature that arise abroad may be laid as
happening in an English county. But there are occasions which
make it absolutely necessary to state in the declaration, that the cause
of action really happened abroad ; as in the case of specialties, where
the date must be set forth. If the declaration states a specialty
to have been made at Westminster in Middlesex, and upon producing
the deed, it bears date at Bengal, the action is gone ; because it is
such a variance between the deed and the declaration as makes it
appear to be a different instrument. There is some confusion in the
books upon the stat. 6 Ric. 2. But I do not put the objection upon
that statute. I rest it singly upon this ground. If the true date or
description of the bond is not stated, it is a variance. But the law
has in that case invented a fiction ; and has said, the party shall first
set out the description truly, and then give a venue only for form, and
for the sake of trial, by a videlicet, in the county of Middlesex, or
any other county. But no judge ever thought that when the declara-
tion said iu Fort St. George, viz. in Cheapside, that the plaintiff meant
it was in Cheapside. It is a fiction of form ; every countrv has its
forms, which are invented for the furtherance of justice ; and it is a
certain rule, that a fiction of law shall never be contradicted so as to
defeat the end for which ii was invented, but for every other purpose
it may be contradicted. Now the fiction invented in these eases is
barely for the mode of trial; to every other purpose, therefore, it
shall be contradicted, but not for the purpose of saying the cause shall
not be tried. So in the case that was long agitated and finally deter-
502 MOSTYN V. FABKIGAS. [CHAP. IV.
mined some years ago. upon a fiction of the teste of writs taken out in
the vacation, which bear date as of the last day of the term, it was
held, that the fiction shall not be contradicted so as to invalidate the
writ, bj T averring that it issued on a day in the vacation ; because the
fiction was invented for the furtherance of justice, and to make the writ
appear right in form. But where the true time of suing out a latitat is
material, as on a plea of non assumpsit infra sex annos, there it may
be shown that the latitat was sued out after the six years notwithstand-
ing the teste. I am sorry to observe, that some sayings have been
alluded to, inaccurately taken down, and improperly printed, where
the court has been made to say, that as men they have one way of
thinking, and as judges they have another, which is an absurdity ;
whereas in fact they only meant to support the fiction. . . .
Can it be doubted, that actions may be maintained here, not only
upon contracts, which follow the persons, but for injuries done by
subject to subject ; especially for injuries where the whole that is
prayed is a reparation in damages, or satisfaction to be made by
process against the person or his effects, within the jurisdiction of
the court ? We know it is within every day's experience. I was
embarrassed a great while to find out whether the counsel for the
plaintiff really meant to make a question of it. In sea batteries the
plaintiff often lays the injury to have been done in Middlesex, and
then proves it to be done a thousand leagues distant on the other
side of the Atlantic. There are cases of offences on the high seas,
where it is of necessity to lay in the declaration, that it was done
upon the high seas ; as the taking a ship. There is a case of that
sort occurs to my memory ; the reason I remember it is, because
there was a question about the jurisdiction. There likewise was an
action of that kind before Lord Chief Justice Lee, and another before
me, in which I quoted that determination, to show, that when the
Lords Commissioners of prizes have given judgment, that is conclu-
sive in the action ; and likewise when they have given judgment, it
is conclusive as to the costs, whether they have given costs or not.
It is necessary in such actions to state in the declaration, that the ship
was taken, or seized on the high seas, videlicet, in Cheapside. But
it cannot be seriously contended that the judge and jury who try the
cause, fancy the ship is sailing in Cheapside : no, the plain sense of
it is, that ns an action lies in England for the ship which was taken
on the high seas, Cheapside is named as a venue ; which is saying
no more, than that the party prays the action may be tried in Lon-
don. But if a party were at liberty to offer reasons of fact contrary
to the truth of the case, there would be no end of the embarrass-
ment. At the last sittings there were two actions brought by Arme-
nian merchants, for assaults and trespasses in the East Indies, and they
are very strong authorities. Serjeant Gbynn said, that the defendant
Mr. Verelst was very ably assisted : so he was, and by men who
would have taken the objection, if they had thought it maintainable,
CHAP. IV.] MOSTYN V. FABIUGAS. 503
and the actions came on to be tried after this case had been argued
once ; yet the counsel did not think it could be supported. Mr.
Verelst would have been glad to make the objection ; he would not
have left it to a jury, if he could have stopped them short, and said,
you shall not try the actions at all. I have had some actions before
me, rather going further than these transitory actions; that is, going
to cases which in England would be local actions : I remember one,
I think it was an action brought against Captain Gambier, who by
order of Admiral Boscawen had pulled down the houses of some sutlers
who supplied the navy and sailors with spirituous liquors ; and whether
the act was right or wrong, it was certainly done with a good intention
on the part of the admiral, for the health of the sailors was affected by
frequenting them. They were pulled down : the captain was inatten-
tive enough to bring the sutler over in his own ship, who would never
have got to England otherwise ; and as soon as he came here he was
advised that he should bring an action against the captain. He
brought his action, and one of the counts in the declaration was for
pulling down the houses. The objection was taken to the count for
pulling down the houses ; and the case of Skinner and the East-India
company was cited in support of the objection. On the other side,
they produced from a manuscript note a case before Lord Chief Justice
Eyre, where he overruled the objection ; and I overruled the objec-
tion upon this principle, namely, that the reparation here was personal,
and for damages, and that otherwise there would be a failure of jus-
tice ; for it was upon the coast of Nova Scotia, where there were no
regular courts of judicature: but if there had been, Captain Gambier
might never go there again; and, therefore, the reason of locality in
such an action in England did not hold. I quoted a case of an injury
of that sort in the East Indies, where even in a court of equity Lord
Hardwicke had directed satisfaction to be made in damages : that case
before Lord Hardwicke was not much contested, but this case before
me was fully and seriously argued, and a thousand pounds damages
given against Captain Gambier. I do not quote this for the authority
of my opinion, because that opinion is very likely to be erroneous, but
I quote it for this reason ; a thousand pounds damages and the costs
were a considerable sum. As the captain had acted by the orders of
Admiral Boscawen, the representatives of the admiral defended the
cause, and paid the damages and costs recovered. The case was
favorable; for what the admiral did was certainly well intended;
and yet there was no motion for a new trial.
I recollect another cause that came on before me ; which was the
case of Admiral Palliser. There the very gist of the action was local .
It was for destroying fishing huts upon the Labrador coast. After the
treaty of Paris, the Canadians early in the season erected lints for
fishing; and by that menus got an advantage, by beginning earlier,
of the fishermen who came from England. It was a nice question
upon the r'mht of the Canadians. However, the admiral from general
504 MATTHAEI V. GALITZIN. [CHAP. IV.
principles of policy ordered these huts to be destroyed. The cause
went on a great way. The defendant would have stopped it short at
once, if he could have made such an objection, but it was not made.
There are no local courts among the Esquimaux Indians upon that
part of the Labrador coast ; and therefore whatever injury had been
done there by any of the King's officers would have been altogether
without redress, if the objection of locality would have held. The
consequence of that circumstance shows, that where the reason fails,
even in actions which in England would be lecal actions, 3'et it does
not hold to places beyond the seas within the King's dominions.
Admiral Palliser's case went off upon a proposal of a reference, and
ended by an award. But as to transitory actions, there is not a color
of doubt but that every action that is transitory may be laid in any
county in England, though the matter arises bej'ond the seas ; and
when it is absolutely necessary to lay the truth of the case in the
declaration, there is a fiction of law to assist you, and you shall not
make use of the truth of the case against that fiction, but you may
make use of it to every other purpose. I am clearly of opinion not
only against the objections made, but that there does not appear a
question upon which the objections could arise.
The three other judges concurred.
Per Cur. Judgment affirmed. 1
MATTHAEI v. GALITZIN.
Chancery. 1874.
[Rcjwrted Law Reports, 18 Equity, 340.]
Sir R. Malins, V. C. I think it is clear upon the face of the
bill that there is no right against the company if there is none against
the Princess Galitzin. They are made parties as stakeholders, and it
is said they are bound to pay the princess three-fifths, subject only to
the liability of paying the ten per cent commission to the plaintiff.
If, therefore, the bill fails against the princess, it must necessarily
fail as against the company. That would be the case at the hearing of
the cause. The bill, therefore, must be regarded as a bill against the
princess. What, then, are the facts ? Here is a case in which the
husband of the plaintiff, who was a foreigner, entered into a contract
with another foreigner respecting property situate in a foreign country.
What right in such a case can there be to sue here ? Can any one
sue in the courts in this country in matters relating to foreign property,
the contract being foreign, and both parties foreign subjects ?
i Ace. Roberts v. Dinsmuir, 75 Cal. 203, 16 Pac. 782 ; Watts v. Thomas, 2 Bibb,
458 ; Mason v. Warner, 31 Mo. 508 ; Henry v. Sargent, 13 K H. 321 ; Ackerson v.
E. R. R., 31 N. J. L. 309 ; Lister v. Wright, 2 Hill, 320.— Ed.
CHAP. IV.] MATTHAEI V. GALITZIN. 505
Certainly, according to my view, it is no part of the business of this
court to settle disputes between foreigners. There must be some
cause for giving jurisdiction to the tribunals of this country ; either
the property or the parties must be here, or there must be something
to bring the subject-matter within the cognizance of this court. This
is the case of a plaintiff who, though now stated to be living at the
Charing Cross Hotel, is resident at Antwerp ; and it is admitted she is
a foreign subject suing another foreign subject. If I were to overrule
the demurrer and allow the suit to proceed, it would under such cir-
cumstances be useless. It would be a grievous hardship if a foreigner
residing in a foreign country, and having property in that country,
where there are tribunals in which the rights of subjects of that country
can be asserted, could be dragged into the courts of this country and
be subjected to the annoyance of all the proceedings in these courts.
It is certainly a jurisdiction which ought not to be exercised except in
cases of absolute necessity. Then arises the question whether the
plaintiff is entitled to any remedy against the princess, and if she is
not, then she is not entitled as against the company.
All the cases cited go upon the same principle — such as Blake v.
Blake, 18 W. R. 944; Norris v. Chambers, 29 Beav. 246, 3 D. F. & J.
583 ; and Cookney v. Anderson, 31 Beav. 452, 1 D. J. & S. 365 —and
they show that you cannot sue a foreigner in this country, unless the
parties are resident here or the property is situate in this country.
I find my opinion in Blake v. Blake, 18 W. R. 944, follows those
authorities. That was a case in which the plaintiff was a foreigner
resident at Boulogne, and the defendant was an Irishman, for that
purpose also a foreigner, and resident in Ireland, for the sale of some
land in Ireland, and the contract was entered into at Boulogne. A
receiver of the property had been appointed by the Court of Chancery
in Ireland, and a bill was filed in this court asking that certain deeds
relating to the property might be ordered to be given up. I find that
I made these observations in that case : I had no doubt that when
persons who were resident here entered into a contract, though
the subject-matter of the contract was abroad, yet that the contract
might be sustained ; but when neither party had anything to do with
this countr}-, and the subject-matter was not situated here, as in that
case, then, if the plea were overruled, the court might as well be
called upon to interfere in the affairs of all countries. Two French-
men might come here to have their disputes decided. Ireland for this
purpose was a foreign country. They had a Court of Chancery of
their own; and though it had been -aid it was not a suit to recover
land, yet the effect of it was to recover an estate. I there stated that
the case was. in my opinion, governed by Cookney n. Anderson, 31
Beav. 452, 1 D. J. & S. 865, and the circumstances of the land being
in Ireland, and the defendant resident in that country, were sufficient
to show that the bill ought not to have been filed in this court. So 1
say in this case, that neither the plaintiff nor the defendanl being
506 BRITISH, ETC. CO. V. COMPANHIA DE MOCAMBIQUE. [CHAP. IV.
resident in this country, and the subject-matter not being situate here,
it is a case which this court has nothing to do with, and the demurrers
must be allowed.
The last two cases which were cited — Maunder v. Lloyd, 2 J. & H.
718, and Hendrick v. Wood, 9 W. R. 588 — seem to have no applica-
tion ; but as far as they go they are not authorities in favor of the
plaintiff, for though the parties were foreigners, the property was
partly in this country.
My opinion is, therefore, that a foreigner resident abroad cannot
bring another foreigner into this court respecting property with which
this court has nothing to do. This court is not to be made a vehicle
for settling disputes arising between parties resident abroad.
If the plaintiff asks for leave to amend, it is not a case in which I
should give leave.
It was stated that leave to amend was not asked, and the demurrers
were, therefore, simply allowed. 1
BRITISH SOUTH AFRICAN CO. v. COMPANHIA DE
MOCAMBIQUE.
House of Loans. 1893.
[Reported [1893] Appeal Cases, 602.]
In an action by the respondents against the appellants the plaintiffs
b} - their statement of claim alleged (inter alia) that the plaintiff com-
pany was in possession and occupation of large tracts of lands and
mines and mining rights in South Africa ; and that the defendant com-
pany by its agents wrongfully broke and entered and took possession
of the said lands, mines, and mining rights, and ejected the plaintiff
company, its servants, agents, and tenants therefrom ; and also took
possession of some of the plaintiffs' personal property and assaulted
and imprisoned some of the plaintiffs.
The statement of defence in paragraph 1 — as to so much of the
statement of claim as alleged a title in the plaintiff company to the
lands, mines, and mining rights, and alleged that the defendants by
their agents wrongfully broke and entered the same, and claimed a dec-
laration of title and an injunction — whilst denying the alleged title
and the alleged wrongful acts, said that the lands, mines, and mining
rights were situate abroad, to wit in South Africa, and submitted that
the court had no jurisdiction to adjudicate upon the plaintiffs' claim.
In paragraph 2 of the reply the plaintiffs objected that paragraphs
1 and 9 of the defence were bad in law, and alleged that paragraph 1
1 Ace. Brinley v. Avery, Kirby, 25 ; Lorraine v. Tourtaillier (Brussels, 21 Mar.
1877), 5Clunet, 511. — Ed
CHAP. IV.] BRITISH, ETC. CO. V. CDMPANHIA DE MOCAMBIQUE. 507
did not show that there was any court other than that in which this
action was brought having jurisdiction to adjudicate on the plaintiffs'
said claims ; and the plaintiffs further allege that there was no compe-
tent tribunal having jurisdiction to adjudicate on the said claims in the
country where the acts complained of were committed ; and that the
acts complained of were illegal according to the laws of the country
where the same were committed.
An order having been made for the disposal of the points of law thus
raised by the pleadings, the Queen's Bench Division (Lawrance and
Wright, JJ.) made an order that judgment be entered for the defend-
ants dismissing the action so far as it claimed a declaration of title to
land, and also so far as it claimed damages or an injunction in relation
to trespass to land.
The Court of Appeal (Fry and Lopes, L.JJ. ; Lord Esher, M. R.,
dissenting) declared that Her Majesty's Supreme Court has jurisdiction
to entertain the claim for damages. The defendants appealed against
this order. 1
Lord Herscuell, L. C. The distinction between matters which are
transitory or personal and those which are local in their nature, and the
refusal to exercise jurisdiction as regards the latter where they occur
outside territorial limits, is not confined to the jurisprudence of
this country. Story, in his work on the Conflict of Laws (s. 551),
after stating that by the Roman law a suit might in many cases be
brought, either where property was situate or where the party sued had
his domicile, proceeds to say that "even in countries acknowledging the
Roman law it has become a very general principle that suits in rem
should be brought where the property is situate ; and this principle is
applied with almost universal approbation in regard to immovable prop-
erty. The same rule is applied to mixed actions, and to all suits which
touch the realty."
In section 553, Story quotes the following language of Vattel :
"The defendant's judge" (that is, the competent judge), says he, " is
the judge of the place where the defendant has his settled abode, or
the judge of the place where the defendant is when any sudden diffi-
culty arises, provided it does not relate to an estate in land, or to a
right annexed to such an estate. In such a case, as property of this
kind is to be held according to the laws of the country where it is sit-
uated, and as the right of granting it is vested in the ruler of the coun-
try, controversies relating to such property can only be decided in the
State in which it depends." He adds, in the next section : "It will be
perceived that in many respects the doctrine here laid down coincides
with that of the common law. It lias been already stated that by the
common law, personal actions, being transitory, may be brought in any
place where the party defendant can be found ; that real actions must be
brought in the forum rri sites; and that mixed actions are properly re-
i Tint statement of facta has been abridged, and arguments and part of the opiniou
mnittcd. — Ed.
508 BRITISH, ETC. 00. V. COMPANHIA DE MOZAMBIQUE. [CHAP. IV.
ferable to the same jurisdiction. Among the latter are actions for tres-
passes and injuries to real property which are deemed local ; so that
they will not lie elsewhere than in the place rei sitae."
The doctrine laid down by foreign jurists, which is said by Story to
coincide in many respects with that of our common law, obviously had
relation to the question of jurisdiction, and not to any technical rules
determining in what part of a country a cause was to be tried. Story
was indeed regarded by one of the learned judges in the court below
(Lopes, L. J., [1892] 2 Q. B. 420) as sanctioning the view that our
rules with regard to venue in the case of local actions offered the only
obstacle to the exercise of jurisdiction in actions of trespass to real
property. The passage relied on is as follows (s. 554) : " Lord Mans-
field and Lord Chief Justice Eyre held at one time a different doctrine,
and allowed suits to be maintained in England for injuries done by
pulling down houses in foreign unsettled regions, namely, in the desert
coasts of Nova Scotia and Labrador. But this doctrine has been
since overruled as untenable according to the actual jurisprudence of
England, however maintainable it might be upon general principles of
international law, if the suit were for personal damages only."
By the words kk untenable according to the actual jurisprudence of
England," I do not think Story was referring to the rule which in this
country, regulated the place of trial in the case of local actions. Nor
am I satisfied that either Lord Mansfield or Story would have regarded
an action of trespass to land as a suit for personal damages only, if the
title to the land were at issue ; and in order to determine whether there
was a right to damages it was necessary for the court to adjudicate
upon the conflicting claims of the parties to the real estate. In both
the cases before Lord Mansfield, as I understand them, no question of
title to real property was in issue. The sole controversy was, whether
the British officers sued were, under the circumstances, justified in in-
terfering with the plaintiffs in their enjoyment of it.
The question what jurisdiction can be exercised by the courts of any
country according to its municipal law cannot, I think, be conclusively
determined by a reference to principles of international law. No nation
can execute its judgments, whether against persons or movables or real
property, in the country of another. On the other hand, if the courts
of a country were to claim, as against a person resident there, jurisdic-
tion to adjudicate upon the title to land in a foreign country, and to
enforce its adjudication in personam, it is by no means certain that
any rule of international law would be violated. But in considering
what jurisdiction our courts possess, and have claimed to exercise
in relation to matters arising out of the country, the principles which
have found general acceptance amongst civilized nations as defining
the limits of jurisdiction are of great weight.
It was admitted in the present case, on behalf of the respondents,
that the court could not make a declaration of title, or grant an injunc-
tion to restrain trespasses, the respondents having in relation to these
CHAP. IV.] BKITISH, ETC. CO. V. COMPANHIA DE MOCAMBIQUE. 509
matters abandoned their appeal in the court below. But it is said that
the court may inquire into the title, and, if the plaintiffs and not the de-
fendants are found to have the better title, may award damages for the
trespass committed. My Lords, I find it difficult to see why this dis-
tinction should be drawn. It is said, because the courts have no
power to enforce their judgment by any dealing with the land itself,
where it is outside their territorial jurisdiction. But if the}' can
determine the title to it and compel the payment of damages founded
upon such determination, why should not they equally proceed in per-
sonam against a person who, in spite of that determination, insists on
disturbing one who has been found by the court to be the owner of the
property ?
It is argued that if an action of trespass cannot be maintained in this
country where the land is situate abroad, a wrong-doer by comino- to
this country might leave the person wronged without any remedy. It
might be a sufficient answer to this argument to say that this is a state
of things which has undoubtedly existed for centuries without any evi-
dence of serious mischief or any intervention of the legislature ; for
even if the Judicature Rules have the effect contended for, I do not
think it can be denied that this was a result neither foreseen nor in-
tended. But there appear to me, I confess, to be solid reasons why
the courts of this country should, in common with those of most other
nations, have refused to adjudicate upon claims of title to foreign land
in proceedings founded on an alleged invasion of the proprietary rights
attached to it, and to award damages founded on that adjudication.
The inconveniences which might arise from such a course are
obvious, and it is by no means clear to my mind that if the courts
were to exercise jurisdiction in such cases the ends of justice would in
the long run, and looking at the matter broad!}', be promoted. Sup-
posing a foreigner to sue in this country for trespass to his lands sit-
uate abroad, and for taking possession of and expelling him from them,
what is to be the measure of damages? There being no legal process
here by which he could obtain possession of the lands, the plaintiff
might, I suppose, in certain circumstances, obtain damages equal in
amount to their value. But what would there be to prevent his leav-
ing this country after obtaining these damages and re-possessing him-
self of the lands? What remedy would the defendant have in such a
case where the lands are in an unsettled country, with no laws or regu-
lar system of government, but where, to use a familiar expression, the
only right is might? Such an occurrence is not an impossible, or even
an improbable, hypothesis. It is quite true that in the exercise of the un-
doubted jurisdiction of the courts it ma}- become necessary incidentally
to investigate and determine the title to foreign hinds; but it does not
seem to me to follow that because such a question may incidentally
arise and fall to be adjudicated upon, the courts possess, or that it is
expedient that they should exercise, jurisdiction to try an action
founded on a disputed claim of title to foreign lands.
510 GARDNER V. THOMAS. [CHAP. IV.
For the reasons with which I have troubled your Lordships at some
length, I think the judgment appealed from should be reversed and the
judgment of the Divisional Court restored, and that the respondents
should pa}' the costs here and in the court below, and I move your
Lordships accordingly.! .
ANONYMOUS.
General Court op Massachusetts Bay Colony. 1648.
[Reported 2 Massachusetts Colonial Records, 255.]
A question arising about the interpretation of a clause in a law,
made 42, about try all of actions, &c, viz. whether a personall action, as
for battery, &c. ariseing upon an act commited in England, & the
parties come both into this Jurisdiction, whether by law we are barred
from trying the action of battery in this iurisdiction, the Courte hath
voted that we are not barred by that lawe, because a personall action
followeth the person, & from the person onely the cause of the action
ariseth.
GARDNER v. THOMAS.
Supreme Court of New York.
[Reported 14 Johnson's Reports, 134.]
Yates, J., delivered the opinion of the court. 2 This cause comes up
on certiorari to the Justices' Court in New York. The action was for
an assault and battery. The defendant pleaded that the assault and
battery (if any) was committed on board of a British vessel upon the
high seas, and that the plaintiff and defendant were both British sub-
jects, one the master, and the other a sailor, on board the same vessel.
To this plea there was a demurrer and joinder, on which judgment was
given for the plaintiff below.
The question presented by this case is, whether this court will take
cognizance of a tort committed on the high seas, on board of a foreign
vessel, both the parties being subjects or citizens of the country to
which the vessel belongs.
1 Lords Halsbury, Macnaghten, and Morris concurred.
Ace. (in addition to the authorities cited in the dissenting opinion in Little v.
Ry., infra), Howard v. Ingersoll, 23 Ala. 673. See Laird v. R. R., 62 N. H. 254;
Tyson v. McGuiness, 25 Wis. 656. — Ed.
2 The opinion only is given ; it sufficiently states the case. — Ed.
CHAP. IV.] GARDNER V. THOMAS. 511
It must be conceded that the law of nations gives complete and entire
jurisdiction to the courts of the country to which the vessel belongs,
but not exclusively. It is exclusive only as it respects the public injury,
but concurrent with the tribunals of other nations, as to the private
remedy. There may be cases, however, where the refusal to take cog-
nizance of causes for such torts may be justified by the manifest public
inconvenience and injury which it would create to the community of
both nations ; and the present is such a case.
In Mostyn v. Fabrigas (Cowp. 176), Lord Mansfield, in his opin-
ion there stated, is sufficiently explicit as to the doctrine, that for an
injury committed on the high seas, circumstanced like the one now
before us, an action ma\' be sustained in the court of King's Bench ;
he 011I3* appears to doubt whether an action may be maintained in
England for an injury in consequence of two persons fighting in France,
when both are within the jurisdiction of the court. The present action,
however, is for an injury on the high seas ; and, of course, without the
actual or exclusive territory of any nation.
The objection to the jurisdiction, because it must be laid in the
declaration to be against the peace of the people, is not sufficient, for
that is mere matter of form, and not traversable. In Rafael v. Verelst,
2 Black. Rep. 1058, De Gre} - , chief justice, says, that personal injuries
are of a transitory nature, et sequuntur forum rei ; and though, in all
declarations, it is laid contra pacem, yet that is only matter of form,
and not traversable.
It is evident, then, that our courts may take cognizance of torts
committed on the high seas, on board of a foreign vessel, where both
parties are foreigners ; but I am inclined to think it must, on principles
of policy, often rest in the sound discretion of the court to afford juris-
diction or not, according to the circumstances of the case. To say that
it can be claimed in all cases, as matter of right, would introduce a
principle which might, often times, be attended with manifest disadvan-
tage, and serious injury to our own citizens abroad, as well as to
foreigners here. Mariners might so anno}' the master of a vessel as to
break up the voyage, and thus produce great distress and ruin to the
owners. The facts in this case sufficiently show the impropriety of
extending jurisdiction, because it is a suit brought by one of the
mariners against the master, both foreigners, for a personal injury sus-
tained on board of a foreign vessel, on the high seas, and lying in port
when the action was commenced, and, for aught that appears in the
case, intending to return to their own country, without delay, other
than what the nature of the voyage required. Under such circum-
stances, it is manifest that correct polity ought to have induced the
court below to have refused jurisdiction, so as to prevent the serious
consequences which must result from the introduction of a system, with
regard to foreign mariners and vessels, destructive to commerce ; since
it must materially affect the necessary intercourse between nations, by
which alone it can be maintained. The plaintiff, therefore, ought to
512 ROBERTS V. KNIGHTS. [CHAP. IV.
have been left to seek redress in the courts of his own country on his
return. The judgment, for these reasons, may be deemed to be im-
providently rendered in the court below, and is, therefore, reversed.
Judgment of reversal. 1
ROBERTS v. KNIGHTS.
Supreme Judicial Court of Massachusetts. 1863.
[Reported 7 Allen, 449.]
Contract brought in the Police Court of Boston by the plaintiff, who
is a British subject, against the master of a British vessel, who is also a
British subject. The defendant objected, in the Police Court, that the
court had no jurisdiction, and a hearing was thereupon had upon all
the questions involved, and the case was dismissed, and the plaintiff'
appealed to the Superior Court. 2
Chapman, J. The question now presented is, whether our courts are
bound to take jurisdiction of this case, both the parties being aliens, and
having onlv a transient residence within the Commonwealth.
The Gen. Sts. do not settle the question. Not much light is thrown
upon it b} r c. 123, § 1, cited by the plaintiff's counsel, which provides
that, if neither party lives in the State, a transitory action may be
brought in any county. Nor have we been able to find any provisions
in any of our treaties with Great Britain which give us any aid. The
1 See Otis v. Wakeman, 1 Hill, 604. In Smith v. Crocker, 14 App. Div. 245 (1897),
O'Brien, J., said: "The contention that, because both the plaintiff and the defendant
Crocker are non-residents, the trial court should have refused to entertain jurisdiction
of the cause, we regard as equally untenable. We are referred to a number of cases
(Ferguson v. Neilson, 33 N. Y. St. Repr. 814 ; Robinson v. Oceanic Steam Nav. Co.,
112 N. Y. 315) in which it was held that the courts of this State will not retain juris-
diction of and determine an action for tort between parties residing in other States on
causes of action arising out of the State, as a matter of public policy, unless special
reasons are shown to exist which make it necessary or proper so to do. An examina-
tion of the cases cited, as well as of all to which our attention has been called where
that rule has been applied, were actions in tort, and not actions upon a contract. Our
courts have never refused to entertain jurisdiction of a cause of action arising upon
contract. In the case of Davidsburgh v. The Knickerbocker Life Ins. Co. (90 N. Y.
526), it was held that as the City Court of Brooklyn was a local court, of limited juris-
diction, unless the defendants came within the classes over which the statute had con-
ferred jurisdiction upon this court, the parties could not confer jurisdiction by consent.
This case is in no respect an authority for the rule contended for by the appellants.
Whether, therefore, this contract was made in California or New York — upon which
question much in favor of the view that it was a New York contract might be said —
we do not think it is necessary to determine ; as it appears that the action was one
upon contract, the court committed no error in entertaining jurisdiction of the
cause." — Ed.
2 Only so much of the case as involves this question is given. — Ed.
CHAP. IV.] ROBERTS V. KNIGHTS. 513
question whether the courts of a country ought to take jurisdiction of
litigation between aliens, temporarily residing within its limits, is pri-
marily one of international law.
Vattel, b. 2, c. 8, § 103, says that by the law of nations disputes that
may arise between strangers, or between a stranger and a citizen, ought
to be terminated by the judge of the place, and also by the laws of the
place. In 2 Kent's Com. (6th ed.) 64, this authority is cited, and the
law is stated to be that if strangers are involved in disputes with our
citizens, or with each other, they are amenable to the ordinary tribunals
of the country. No distinction is made between transient and perma-
nent residents.
In 1650 our colonial legislature passed an act, reciting that " whereas
oftentimes it comes to pass that strangers coming amongst us have sud-
den occasions to try actions of several natures in our courts of justice,"
the right is therefore given to them. 3 Col. Rec. 202. See also Anc.
Char^l. In 1672 another act was passed, confirming and regulating
the right. 4 Col. Rec. part 2, 532. See also Anc. Chart. 192. These
acts make no exception of cases of transient residence, and they
•established our municipal law at a very early date.
In Barrell v. Benjamin, 15 Mass. 354, it was objected that the de-
fendant, whose domicile was in Demerara, being transiently here, was
not liable to be sued in our courts by the plaintiff, whose domicile was
in Connecticut, and who was also transiently here. The precise ques-
tion which arises in the present case was not before the court, but the
reasoning of Parker, C. J., goes to sustain the marginal note of the case,
■which is as follows : "It seems that one foreigner may sue another who
is transiently within the limits of this State, upon a contract made be-
tween them in a foreign country."
In Judd v. Lawrence, 1 Cush. 531, it was held that an alien resident
within the Commonwealth is entitled to the benefit of the insolvent laws.
Since St. 1852, c. 29, aliens have been able to take, hold, and transmit
real estate. It seems, therefore, to be the policy of modern times to
enlarge rather than diminish the rights and privileges of aliens.
The courts of the United States have not jurisdiction where both par-
ties are aliens, because this is not one of the enumerated cases in which
jurisdiction is given to them. Barrell w. Benjamin, ubi supra ; Turner
/•. Bank of North America, 4 Dall. 11 ; Hodgson v. Bowerbank, 5 Cranch,
303.
The argument ab inconvenient i, which is urged on behalf of the de-
fendant, has much force. It is extremely inconvenient to one who is
temporarily in a foreign country to be sued by a fellow-countryman in
its courts. But it is met by an argument of equal force on the other
side. If the plaintiff had no such remedy, he would often be subjected
to great hardships. On the whole, it is consonant to natural right and
justice that the courts of every civilized country should be open to hear
the causes of all parties who may be resident for the time being within
its limits.
514 BURDICK V. FREEMAN. [CHAP. IV.
The defendant relies upon a clause in the Merchants' Shipping Act
(17 & 18 Vict, c 104), which provides that, in a contract like that of
the plaintiff, no seaman shall sae for wages in any court abroad, except
in cases of discharge or of danger to life.
But this act cannot affect the question of jurisdiction, which, on the
motion to dismiss, is the only question to be considered. 1
BURDICK v. FREEMAN.
Court of Appeals, New York. 1890.
[Reported 120 New York, 420.]
Follett, C. J. This action, begun February 19, 1895, is for crim-
inal conversation. 2 . . . After the court had concluded its charge, the
defendant asked that the jury be instructed "that the plaintiff cannot
maintain this action in the courts of this State, and that this court has
no jurisdiction of this case." This request was refused, and the defend-
ant excepted. This action was for the recovery of damages for a per-
sonal injury. Code Civil Proc, § 3343, subd. 9. The courts of this
State may, in their discretion, entertain jurisdiction of such an action
between citizens of another State actually domiciled therein when the
action was begun and tried, though the injury was committed in the
State of their residence and domicile. Gardner v. Thomas, 14 Johns.
134 ; Johnson v. Dalton, 1 Cow. 543 ; Dewitt v. Buchanan, 54 Barb.
31 ; Mclvor v. McCabe, 26 How. 257 ; Newman v. Goddard, 3 Hun, 70 ;
Mostyn v. Fabrigas, 2 Smith, Lead. Cas. (9th ed.), 916 ; Story, Conf.
Laws, § 542; Whart. Conf. Laws, §§ 705, 707, 743; 4 Phillim. Int.
Law, 701. The judgments in Molony v. Dows, 8 Abb. Pr. 316, and
Latourette v. Clark, 30 How. Pr. 242, in so far as they hold otherwise,
must be regarded as overruled. The defendant had not left the State
of his residence, nor had he removed his property therefrom, when this
action was begun, and we find no sufficient reason for prosecuting it in
the courts of this State. But this action had been pending for a year,
and the question as to whether the court should entertain jurisdiction
had not been raised by answer, by special motion, or during the trial;
and we think that, while the Supreme Court might, in the exercise of its
discretion, have refused to entertain the action, or dismissed it on its
own motion, yet the defendant, not being entitled to a dismissal as a
matter of right, ought not to be permitted to lie by until the close of the
trial, when its probable result could be inferred, and then successfully
invoke the exercise of the discretion of the court in his favor. The
judgment should be affirmed, with costs. All concur, except Bradley
and Haight, JJ., not sitting.
i Ace. Gofrode v. Gartner, 79 Mich. 332, 44 N. W. 623. — Ed.
2 Part of the opinion is omitted. — Ed.
CHAP. IV.] LITTLE V. CHICAGO, ETC. RAILWAY. 515
LITTLE v. CHICAGO, ST. PAUL, MINNEAPOLIS, AND
OMAHA RAILWAY.
Supreme Court ok Minnesota. 1896.
[Reported 65 Minnesota, 48.]
Mitchell, J. This action was brought to recover damages for
injuries to real estate situated in Wisconsin, caused by the negligence
of the defendant. The question presented is, can the courts of this
State take cognizance of actions to recover damages to real estate
lying without the State: in other words, is such an action local or
transitory in its nature ?
The history of the progress of the English common law respecting
the locality of actions will aid in determining how this question ought
to be decided on principle. Originally, all actions were local. This
arose out of the constitution of the old jury, who were but witnesses
to prove or disprove the allegations of the parties, and hence every
case had to be tried by a jury of the vicinage, who were presumed to
have personal knowledge of the parties as well as of the facts. But,
as circumstances and conditions changed, the courts modified the rule
in fact, although not in form. For that purpose they invented a
fiction by which a party was permitted to allege, under a videlicet,
that the place where the contract was made or the transaction occurred
was in any county in England. The courts took upon themselves to
determine when this fictitious averment should and when it should not
be traversable. They would hold it not traversable for the purpose
of defeating an action it was invented to sustain, but always traver-
sable for the purpose of contesting a jurisdiction not intended to be
protected by the fiction. Those actions in which it was held not
traversable came to be known as transitory, and those in which it
was held traversable as local, actions. Actions for personal torts,
wherever committed, and upon contracts (including those respecting
lands), wherever executed, were deemed transitory, and might be
brought wherever the defendant could be found.
As respects actions for injuries to real propert}', we cannot discover
that it was definitely settled in England to which class they belonged
prior to the American Revolution. As late as 1774, in the leading
case of Mostyn v. Fabrigas, 1 Cowp. 161,2 Smith, Lead. Cas. (9th ed.)
916, Lord Mansfield, who did more than any other jurist to brush
away those mere technicalities which had so long obstructed the
course of justice, referred to two cases in which he had held that
actions would lie in England for injuries to real estate situated abroad.
In that same case he said (at page 179, (Smith) page 936) : " Can it
be doubted that actions may be maintained here, not only upon con-
tracts which follow the persons, but for injuries done by subject to
subject, especially for injuries where the whole that is prayed is a
516 LITTLE V. CHICAGO, ETC. RAILWAY. [CHAP. IV.
reparation in damages or satisfaction to be made 03- process against
the person or his effects within the jurisdiction of the court ?" While
all that is there said as to actions for injuries to real property is obiter,
yet it clearly indicates the views of that great jurist on the subject.
And we cannot discover that it was fully settled in England that
actions for injuries to lands were local until the decision of Doulson v.
Matthews, 4 Term R. 503, in 1792, — sixteen years after the declara-
tion of American independence. The courts of England seem to have
finally settled down upon the rule that an action is transitory where
the transaction on which it is founded might have taken place any-
where ; but is local when the transaction is necessarily local, — that is,
could only have happened in a particular place. As an injury to land
can only be committed where the land lies, it followed that, according
to this test, actions for such injuries were held to be local. As the
distinction between local and transitory venues was abolished by the
Judicature Act of 1873 (see 36 & 37 Vict. c. G6, Rules of Procedure, 28),
we infer that actions for injuries to lands lying abroad may now be
maintained in England.
It is somewhat surprising that the American courts have generally
given more weight to the English decisions on the subject rendered
after the Revolution than to those rendered before, and hence have
almost universally held that actions for injuries to lands are local. In
the leading case of Livingston v. Jefferson, 1 Brock. 203, Fed. Cas.
No. 8,411, which has done more than any other to mould the law on the
subject in this countr}-, Chief Justice Marshall argued against the rule,
showing that it was merely technical, founded on no sound principle,
and often defeated justice ; but concluded that it was so thoroughry
established by authority that he was not at liberty to disregard it.
But so unsatisfactory and unreasonable is the rule that since that time
it has, in a number of States, been changed by statute, and in others
the courts have frequently evaded it by metaphysical distinctions in
order to prevent a miscarriage of justice. Chief Justice Marshall's
own State of Virginia changed the rule by statute as early as 1819.
Some courts have made a subtle distinction between faults of omis-
sion and of commission. Thus in Titus v. Inhabitants of Frankfort,
15 Me. 89, which was an action against a town for damages sustained
by reason of defects in a highway, it was held that, while highways must
be local, the neglect of the defendant to do its duty, being a mere non-
feasance, was transitory. It has also been held that where trespass
upon land is followed by the asportation of timber severed from the
land, if the plaintiff waives the original trespass, and sues simply for
the conversion of the property so carried away, the action would become
transitory. American U. Tel. Co. v. Middleton, 80 N.Y. 408 ; Whid-
den v. Seelye, 40 Me. 247. Again, it has been sometimes held that an
action for injuries to real estate is transitory where the gravamen of
the action is negligence, — as for negligently setting fire to the plain-
tiff's premises. Home Ins. Co. v. Pennsylvania R. Co., 11 Hun, 182;
CHAP. IV.] LITTLE V. CHICAGO, ETC. RAILWAY.
517
Barney v. Burstenbinder, 7 Lans. 210. In Ohio the rule has been
repudiated, at least as to causes of action arising within the State, as
being wholly unsuited to their condition, because under their judicial
system it would result in many cases in a total denial of justice.
Genii) v. Grier, 10 Ohio, 209.
Almost every court or judge who has ever discussed the question
has criticised or condemned the rule as technical, wrong on principle,
and often resulting in a total denial of justice, and yet has considered
himself bound to adhere to it under the doctrine of stare decisis.
An action for damages for injuries to real property is on principle
just as transitory in its nature as one on contract or for a tort committed
on the person or personal property. The reparation is purely per-
sonal, and for damages. Such an action is purely personal, and in
no sense real. Every argument founded on practical considerations
against entertaining jurisdiction of actions for injuries to lands lying in
another State could be urged as to actions on contracts executed, or
for personal torts committed, out of the State, at least where the
subject-matter of the transaction is not within the State. Take, for
example, personal actions on contracts respecting lands which are con-
ceded to be transitory. An investigation of title of boundaries, etc.,
may be desirable, and often would be essential to the determination of
the case, yet such considerations have never been held to render the
actions local. Another serious objection to the rule is that under it a
party may have a clear, legal right without a remedy where the wrong-
doer cannot be found, and has no property within the State where the
land is situated. As suggested by plaintiff's counsel, if the rule be
adhered to, all that the one who commits an injury to land, whether
negligently or wilfully, has to do in order to escape liability, is to
depart from the State where the tort was committed, and refrain
from returning. In such case the owner of the land is absolutely
remediless.
We recognize the respect due to judicial precedents, and the au-
thority of the doctrine of stare decisis; but, inasmuch as this rule is in
no sense a rule of property, and as it is purely technical, wrong in
principle, and in practice often results in a total denial of justice, and
has been so generally criticised by eminent jurists, we do not feel
bound to adhere to it, notwithstanding the great array of judicial
decisions in its favor. If the courts of England, generations ago,
were at liberty to invent a fiction in order to change the ancient rule
that all actions were local, and then fix their own limitations to the
application of the fiction, we cannot see why the courts of the present
day should deem themselves slavishly bound by those limitations.
It is suggested that the statutes of this State, in conformity to the
old rule, make actions for injuries to real property local. G. S. 1894,
§§ .0182, 5183. This is true, and, strangely enough, in 1885 the
Legislature went so far as to provide that, if the county designated in
'In- complainl is not the proper one, the court should have no jurisdiction
518 LITTLE V. CHICAGO, ETC. RAILWAY. [(JHA.P. IV.
of the action. But this statute has no application to causes of action
arising; out of the State. While it settles the rule and indicates the
policy of this State as to actions for injuries to real property within the
State, we do not think it ought to have any weight in determining what
the rule should be as to causes of action arising out of the state, which
can have no local venue here under the provisions of the statute. It does
not appear whether the plaintiff lives in this State or in Wisconsin, but
this is immaterial, for the place of his residence cannot affect the nature
of the action. It is also true that in this particular case jurisdiction
of the defendant could be obtained in Wisconsin, but this fact is like-
wise immaterial, and for the same reason. Order reversed.
Buck, J. I dissent. The doctrine laid down in the foregoing
opinion is conceded to be against the great weight of judicial authority,
and, according to my view, is unsound in principle, and contrary to a
wise public policy. The plaintiff is a citizen of the State of Wisconsin,
and the defendant a railroad corporation organized under the laws of
that State with its line constructed therein and extending into this State.
The action is brought in Minnesota to recover for damages done by the
defendant to plaintiff's real estate situate in the State of Wisconsin.
In my opinion, the action is one clearly local in its nature, and not
transitory, and the courts of this State have no jurisdiction over the
subject-matter.
In Cooley on Torts (page 471) it is said that : — " The distinction
between transitory and local actions is this : If the cause of action
is one that might have arisen anywhere, then it is transitory ; but if
it could only have arisen in one place, then it is local. Therefore,
while an action of trespass to the person or for the conversion of
goods is transitory, action for flowing lands is local, because they
can be flooded only where they are. For the most part, the actions
which are local are those brought for the recovery of real estate, or for
injuries thereto or to easements. [Here the injury alleged consisted
in burning the grass, roots, vegetable mould, and other material form-
ing part of the plaintiffs land.] . . . That actions for trespasses on
lands in a foreign country cannot be sustained is the settled law in
England and in this country."
I am not able to state whether it has been changed by statutory
enactment, and the majority opinion merely infers that it has been
so changed. Blackstone, whose Commentaries were written and de-
livered in the form of lectures before the students of Oxford University
in 1758, says (Volume 3, p. 384) that: "All over the world actions
transitory follow the person of the defendant, while territorial suits
must be discussed in the territorial tribunal. I may sue a Frenchman
here for a debt contracted abroad ; but lands lying in France must be
sued for there, and English lands must be sued for in the kingdom of
England."
The case of Mostyn v. Fabrigas, 1 Cowp. 161, decided in 1774, is
CHAP. IV.] LITTLE V. CHICAGO, ETC. RAILWAY. 519
referred to as a leading case, yet the question here involved was not
before the court in that case. There the plaintiff, Fabrigas, brought
an action against Mostyn for assault and false imprisonment com-
mitted on the Island of Minorca, and it was held that the court had
jurisdiction of the subject-matter. This was a transitory action, within
the rules of all the courts. That a jurist as great as Lord Mansfield
should inject into his opinion in that case a remark that was entirely
without any relevancy to the question under consideration, adds but
little force to its weight. And its force is still further lessened by
the fact that ever since that decision the law of England has been
settled by other eminent jurists as otherwise, and contrary to the
majority opinion in this case. It seems to me misleading to call the
case of Mostyn v. Fabrigas a leading one, and cite it as such upon
an important legal question, when the point here involved was not
there in issue. While the great weight of authority is manifestly
against the doctrine laid down by the majority opinion, it may be
well to refer to some of them more in detail.
In the case of Alliu v. Connecticut R. L. Co., 150 Mass. 560, 23
N. E. 581, it was held that an action of tort for breaking and enter-
ing the plaintiff's close, situated in another State, could not be
brought in the Commonwealth of Massachusetts; and the court, in
commenting upon the statute of that State which required actious
for trespass quare clausum to be brought in the county where the
land lies, said: "There seems to be no reason for holding that the
statute renders an action for trespass to lands outside the State tran-
sitory which does not apply to an action for trespass to lands within
the State." The statute has been in existence nearly 100 years, and
we have not been referred to any authority or dictum to sustain the
position of the plaintiff. On the contrary, the action of trespass
(pi are clausum has always been treated as a local action. In the
case of Niles v. Howe, 57 Vt. 388, it w r as held that trespass on the
freehold would not lie in that State for a trespass committed on lands
situated in the State of Massachusetts.
In Du Breuil v. Pennsylvania Co., 130 Ind. 137, 29 N. E. 909, the
court say an action cannot be maintained in this State for an injury
to land lying in another State, caused by a railway company having
a line of railroad running through this and such other State. That
court also applied the same doctrine to an action for injury to land
caused by fire escaping from locomotives in the case of Indiana, B. &
W. By. Co. v. Foster, 107 Ind. 430, « X. K. 204. In the first Indiana
case above cited Chief Justice Elliott says (at p. 13<x): "The case
before us is one in which the land lies within the territory of another
sovereignty, and there can be no doubt upon principle or authority
that our courts have no jurisdiction." In Eachus r. Trustees, 17 111.
534, it was held that the courts of Illinois had no jurisdiction in an
action to recover for injuries to land situate in Lake County, in the
State of [ndiana. En Bettys v. Milwaukee & St. P. My. Co., 87
520 LITTLE V. CHICAGO, ETC. EAILWAY. [CHAP. IV.
Wis. 323, it was held that an action for injury to realty situated in
Iowa could not be maintained in the courts of the State of Wiscon-
sin. Chief Justice Ryan, delivering the opinion of the court, said
that it was plainly a local action under all of the authorities, which
could not be maintained in the State of Wisconsin; and he cited Co.
Litt. 282a; Bac. Abr. "Action" A (p. 79); Comyn, Dig. "Action"
N, 4, 5 (p. 251) ; Doulson v. Matthews, 4 Term R. 503.
In the State of New York the doctrine is well settled by numerous
decisions of its highest court that suits cannot be there maintained
for injuries to lands situated in other States. See American U. Tel.
Co. v. Middleton, 80 N. Y. 408; Cragin v. Lovell, 88 N. Y. 258;
Sentenis v. Ladew, 140 N. Y. 463, 35 N. E. 650; Dodge v. Colby,
108 N. Y. 445, 15 N. E. 703. In the last case Chief Justice Ruger,
in delivering the opinion, says (at p. 451): "The doctrine that the
courts of this State have no jurisdiction of actions for trespass upon
lands situated in other States is too well settled to admit of discus-
sion or dispute. . . . The claim urged by the plaintiff, that, if not
permitted to maintain this action, he is without remedy for a most
serious injury, is quite groundless, and affords no reason for the
assumption of a jurisdiction by this court which it does not possess.
The plaintiff would seem to have the same remedy for the trespasses
alleged that all other parties have for similar injuries. His lands
cannot be intruded upon without the presence in the State of the
wrongdoer, and no reason is suggested why he could not seek his
remedy against the actual wrongdoers in the courts having jurisdic-
tion. His remedy is ample, and it is no excuse for assuming a juris-
diction which we do not have that the plaintiff desires a remedy
against a particular person, rather than one against the real per-
petrators of the injury, who were exposed to prosecution in the place
-where the wrong was committed."
This language would apply to the plaintiff in this case. The de-
fendant is a resideut of the State of Wisconsin, subject to its laws,
and service of summons can there be readily and easily made upon
it. The gravamen of the complaint is injury to the freehold, and
the records of title to that freehold, whether in or out of the plaintiff,
are accessible without trouble, and witnesses, doubtless, are obtain-
able without extra expense. The plaintiff is not without redress
otherwise than in the courts of Minnesota. In fact it is not claimed
that the courts of Wisconsin have no jurisdiction to try this action,
and it is plain that they have such jurisdiction.
As a matter of policy, citizens of other States should not be per-
mitted the use of our courts to redress wrongs and injuries to real
property committed within their own territory. That is not what
our courts were created or organized for. Non-residents should not
be invited to bring to our courts litigation arising over injuries to
real property outside of our territorial limits. Certainly there is
nothing- in our constitution or laws which justifies them in imposing
CHAP. IV.] LITTLE V. CHICAGO, ETC. RAILWAY. 521
the burden of maintaining courts at our expense for their use and
benefit. Protection of our own citizens is the primary object and
duty of our own courts, and it is, to say the least, a very generous
and liberal interpretation of the law which accords to suitors resid-
ing in other States the right to litigate in our courts questions of
injury to real estate there situate, while the courts of those States
reject the claim of our own citizens to litigate there injury to real
estate situate here; notably the adjoining State of Wisconsin, which
adjoins our State, and where the subject-matter of this litigation is
situated. It is clearly against our interests that those living in the
State of Wisconsin near the division line should be encouraged in
this class of litigation because our laws may be more favorable as
to the rules of evideuce, or for any other cause, and thus necessitate
taxation of our people that non-residents may have a forum to liti-
gate that which ous;ht to be and is a local action in the State of
Wisconsin. Our citizens have no such right in the courts of Wiscon-
sin. Comity should be reciprocal, and this can be more properly
obtained by legislative enactments of the respective States than by
an interpretation in direct conflict with the almost universal judicial
decisions elsewhere. But I should seriously doubt the wisdom of
any such enactment. It might, perhaps, prevent the miscarriage
of justice in some cases, but it would aid such miscarriage in many
instances.
The defendant, like many other railroad corporations, extends its
line from other States to this, and owns a vast amount of lands here.
It may allege that citizens of our State are committing injuries to
its real property here, and if such a person owns land in Wisconsin,
or shall be found there, it could, under such a law, commence a suit
in the courts of Wisconsin, and thus put our citizens to the trouble
and expense of going to that State for trial of a case which in all
fairness should be tried here. Railroad companies thus situated
have great facilities for transporting their witnesses over their own
lines without expense to themselves, while a poor man, charged, per-
haps unjustly, with a trespass, must travel hundreds of miles into
another State to meet his accusers, or suffer judgment by default.
The majority opinion means defeat for the railroad company in this
case, but it would mean victory for them hereafter if an alleged tres-
passer upon their lands in Minnesota is caught in Wisconsin and
made to answer in its courts, if such a law should prevail there.
Now citizens of Wisconsin will have an unjust advantage over citi-
zens of Minnesota. Again, suppose the courts of California should
adopt the doctrine of the majority opinion, and one of our citizens
should visit that State for pleasure, health, or business, and is there
surd by some one claiming that lands belonging to him situate here
have been damaged by such citizen of Minnesota, would it not seem
a miscarriage of justice that the trial in such case must take place
thousands of miles away from the man's home, and from the situs of
522 LITTLE V. CHICAGO, ETC. RAILWAY. [CHAP. IV.
the property alleged to have been injured? The hardship of such a
proceeding would seem to be intolerable, and I cannot give my
assent to any such doctrine, whatever may be the rule as to the trial
of actions upon voluntary contracts between parties; and I prefer
that the rule should be that for injuries to real property the jurisdic-
tion of our courts should only be co-extensive with its territorial
sovereignty.
This doctrine, which is so strongly imbedded in the common law
and judicial authorities of the country, is further adhered to by our
own statute, which provides that actions for injuries to real property
shall be brought in the county where the subject of the action is situ-
ated, and prohibits the court from having jurisdiction if brought in
any other county. G. S. 1894, § 5183. Thus we have a legislative
recognition of the doctrine that actions for injuries to real estate are
local. If there is any implication arising from legislative enact-
ments as to the jurisdiction of courts to try actions for injury to real
estate elsewhere, it would be against the contention of the plaintiff.
The statute makes no distinction between trespass to lands within
and without the State. It does not make the action for trespass to
lands outside the State transitory. There is no warrant in the lan-
guage of the Constitution or statute which justifies the majority opin-
ion, and, if sound, it must rest upon some other foundation than is
to be found in the. letter of the law. It is a rule which is more
favorable to the plaintiff than the defendant. The former can select
his own forum; the latter is helpless. No change of venue can be
granted, because none is authorized.
In criminal cases the doctrine of local venue applies. One of the
specifications of complaint in the immortal Declaration of Independ-
ence against Great Britain was, "For transporting us beyond seas to
be tried for pretended offences." Our Constitution (article 1, § 6)
provides that: "In all criminal prosecutions the accused shall enjoy
the right to a speedy and public trial by an impartial jury of the
county or district wherein the crime shall have been committed,
which county or district shall have been previously ascertained by
law." No one pretends but that this is a sound and reasonable prin-
ciple of law, and I have never known of its being assailed as tending
to a miscarriage of justice. This constitutional guaranty applies to
petty offences wherever a small fine might be imposed, and yet
where, perhaps, all the property which a man owns might be at stake,
he can, if found in another State, perhaps thousands of miles away
from home and witnesses and the location of the alleged injured
property, be tried civilly in a foreign sovereignty. Why could he
not also in a civil action be tried in China, Russia, England, Spain,
Cuba, or Mexico, if found there, and there served with process, if
the doctrine of the majority opinion is to prevail? In the case of
Niles v. Howe, 57 Vt. 388, the court say: "It would hardly be
claimed that our courts had jurisdiction over a crime committed in
CHAP. IV.] MEXICAN NATIONAL KAILROAD V. JACKSON. 523
another State. And yet the same reasoning that supports the doc-
trine of local venue applies equally to crimes and real actions."
I think that the order should be affirmed.
MEXICAN NATIONAL RAILROAD v. JACKSON.
Supreme Court of Texas. 1896.
[Reported 89 Texas, 107.]
Browx, J. 1 The plaintiff in error is a corporation operating a line
of railroad in the republic of Mexico, which extends into the State of
Texas. The defendant in error was in the employ of that railroad
company in the republic of Mexico, and, while engaged in the per-
formance of duties as such employee, was injured at the station of La
Ventura, in the said republic.
The trial court rendered judgment for the plaintiff in that court,
J. O. Jackson, for the sum of $5,000, from which appeal was taken,
and the judgment affirmed by the Court of Civil Appeals.
The law of Mexico, under which plaintiff's claim originated,
having been pleaded and proved by the defendant, the rights of the
parties must be determined by its provisions: " It would be as unjust
to apply a different law, as it would be to determine the rights of the
parties by a different transaction." Story, Confl. Laws, p. 38. This
is a transitory action, and may be maintained in any place where the
defendant is found, if there be no reason why the court whose juris-
diction is invoked should not entertain the action. The plaintiff, how-
ever, has no legal right to have his redress in our courts; nor is it
specially a question of comity between this State and the government
of Mexico, but one for the courts of this State to decide, as to whether
or not the law by which the right claimed must be determined is such
that we can properly and intelligently administer it, with due regard
to the rights of the parties. Gardner /<. Thomas, 14 Johns. 134 ; John-
son v. Dalton, 1 Cow. 543. The decisions of this court (well sustained
by high authority) establish the doctrine that the courts of this State
will not undertake to adjudicate rights which originated in another
State or country, under statutes materially different from the law of
this State in relation to the same subject. Railway Co. v. McCorniiek.
71 Tex. 660; Railway Co. v. Richards, 68 Tex. 375. Many difficulties
would present themselves, in an attempl to determine the meaning of
the Mexican law. and to apply it in giving redress to the parties claim-
ing rights under it. We understand the Mexican courts are not gov-
erned by precedent, and we have no access to reports of adjudicated
cases of those courts, from which we could ascertain their interpreta-
tion of these laws. The language of some of the articles quoted is
1 Part of tin' opinion is omitted. — Ed.
524 MEXICAN NATIONAL RAILROAD V. JACKSON. [CHAP. IT.
ambiguous, and we find great difficulty in determining what would be a
proper interpretation of the law. We might or might not give the
same effect to the language that is given to it in the courts of Mexico.
There could be no reasonable certainty that the parties' rights would
be adjusted here as the}' would be if the case were tried in the courts
of that country, which is their right ; for it is well settled that, if one
State undertakes to enforce a law of another State, the interpretation
of that law as fixed b} T the courts of the other State is to be followed.
This difficulty of itself furnishes a sufficient reason for the courts of
this State to decline to assume jurisdiction of this class of cases. . . .
There are other sufficient reasons wh\' our courts should not attempt
to enforce the Mexican law in cases like this. The reason which influ-
ences the courts of one State to permit transitory actions for torts to
be maintained therein, when the right accrued in a foreign State or
countiy, is that the defendant, having removed from such other State or
country, cannot be subjected to the jurisdiction of the courts where
the cause of action arose, and as matter of comity, but more especially
to promote justice, the courts of the place where he is found will en-
force the rights of the injured party against him because it would be
unjust that the wrongdoer should be permitted, by removing from the
country where he inflicted the injury, to avoid reparation for the wrong
done by him. In this case there has been no removal of the person or
property of the defendant. Its railroad remains, as it was at the time
of the injury, within the jurisdiction of the courts of Mexico, and it is
liable to suit there according to the laws of that country. The reason
for permitting the action to be prosecuted in our courts does not obtain
in this case. The plaintiff has voluntarily resorted to the jurisdiction
of our courts, when his rights could be better adjudicated in Mexico.
The Mexican National Railroad is an important public highway in the
republic of Mexico, by which the commerce of that country is largely
carried on with our people. Every judgment for damages rendered
against it reduces its revenues, which must, of necessity, be restored
through its charges for transportation of persons and property, and, in
the main, must be paid by that people. It is but just, and perhaps
necessary to a proper maintenance of that means of transportation,
that the country in which it is operated should determine the charges
to be enforced against it. If Texas should open her courts to all per-
sons that may be injured in Mexico in the management of that railroad
and others, it may seriously affect the means of commerce between
this State and that republic. Thus it becomes a matter of public con-
cern, and a proper subject for our consideration in this connection, in
view of the fact that the railroad company is still subject to that juris-
diction. Justice does not demand the exercise of the jurisdiction, and
comity between the governments of this State and Mexico would seem
to forbid that we should do so. Gardner v. Thomas, 14 Johns. 134;
Johnson v. Dalton, 1 Cow. 543, There are at this time two systems
of railroads extending from the borders of this State into Mexico, for
CHAT. IV.] VANGUILBERT V. VANDEVIERE. 525
several hundred miles each ; and as that country shall hereafter develop,
and commerce between the two countries become more extended, we
may expect other lines to be constructed in the same direction. If our
courts assume to adjust the rights of parties against those railroads,
^rowing out of such facts as in this case, we will offer an invitation to
all such persons who might prefer to resort to tribunals in which the
rules of procedure are more certainly fixed, and the trial by jury
secured, to seek the courts of this State to enforce their claims. Thus
we would add to the already overburdened condition of our dockets in
all the courts, and thereby make the settlement of rights originating
outside the State, under the laws of a different government, a charge upon
our own people. If the facts showed that this was necessary in order
to secure justice, and the laws were such as we could properly enforce,
this consideration would have but little weight ; but we feel that it is
entitled to be considered where the plaintiff chooses this jurisdiction
as a matter of convenience and not of necessity. We conclude that
the District Court and the Court of Civil Appeals erred in not dismiss-
ing this case, under the proof made, for which error the judgments of
both of said courts are reversed, and this cause is dismissed. 1
VANGUILBERT v. VANDEVIERE.
Civil Tribunal of Lille. 1855.
[Reported 12 Clunet, 291.]
The Tribunal. Vandeviere, sued by Vanguilbert in debt for butch-
er's-meat, denied the jurisdiction of the court for the reason that it was
a suit between foreigners, of a personal and transitory nature. No
authorization was shown for the parties to establish their domicile in
France ; but both had engaged in commerce there for several years,
and may be considered as having their domicile there, and as having
reciprocally submitted themselves, as to the execution of their obliga-
tions, to the jurisdiction of the French courts. For these reasons the
plea to the jurisdiction is overruled.
1 But see Mexican Central Ry. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282.
In that case Fly, J., said: "Our courts either have jurisdiction of the class of cases
we are discussing, or they have not; and the question of whether a man has volun-
tarily resorted to our courts, or been forced into them, or whether commerce between
Mexico and Texas will be injured or protected by compelling the payment by a cor-
poration of damages for the wrongs it has indicted, or the condition of our dockets,
can have no weight or force in determining jurisdiction. These are considerations
that might possibly address themselves to the notice of legislatures, but not to the
determination of courts. Courts are not at liberty to assume or decline jurisdiction
upon speculative grounds, or for reasons of public policy. Percival v. Hickey, IS
Johns. 257."
See also Evey v. Mexican Central lly., 81 Fed. 294 ; Western Union Tel. Co. v.
Clark, 14 Tex. Civ. App. 568, 88 8. W. 225. — Ed.
526 KOWALSKI V. MOCALUVO. [CHAP. IV.
KOWALSKI v. MOCALUVO.
CmL Ti.IBUNAL OF THE SEINE. 18S5.
[Reported 12 Clunet, 176.]
M. Kowalski, residing at Paris, in right of the firm of Hertz, sued
Sieur Mocaluvo, a foreigner residing in France, for the sum of 375
francs, being the rent of a piano. M. Mocaluvo set up a plea to the
jurisdiction, on the ground that the suit was between two foreigners.
The Tribunal overruled the plea.
The Tribunal. Though as a general rule the French courts, having
been established to judge the disputes of natives, have no jurisdiction
to determine suits between foreigners not authorized to reside in France,
it is different when, in a question involving acts of commerce, the for-
eign defendant has accepted the jurisdiction of the French courts, either
expressly or by implication.
In hiring a piano at the Hertz establishment, Mocaluvo has obvi-
ously elected at Paris a domicile for the execution of his contract, and
has submitted to the jurisdiction of the French courts ; especially since
he cannot indicate a foreign domicile where he may be sued, alleging
only that he was born in Sicily. Kowalski, substituted, by judgment
of the Tribunal of Commerce of Paris, 22 June, 1882, to the rights of
the firm of Hertz against Mocaluvo, may sue him before the Tribunal
of the Seine.
This firm, and its successor Kowalski, did an act of commerce in
letting and eventually selling a piano to Mocaluvo. France, in permit-
ting foreigners to establish themselves within her territory and there to
engage in commerce, assures them by implication her protection for the
enforcement of contracts good by the law of nature made between
them within her territory, while engaged in commerce. It would be
otherwise if the suit concerned the personal status of foreigners and the
application of the laws of their own countries.
For these reasons the Tribunal declares itself competent, condemns
Mocaluvo to the costs of this hearing, and continues the case for hear-
ing on the merits.
CHAPTER V.
PROCEDURE.
DE LA VEGA v. VIANNA.
King's Benxh. 1830.
[Reported 1 Barnewall <fc Adolphus, 284.]
Lord Tenterden, C. J. 1 This was an application to discharge the
defendant, who had been arrested upon mesne process, out of custody
on filing common bail. The plaintiff and defendant were both foreign-
ers ; the debt was contracted in Portugal, and it appears that, by the law
of that country, the defendant would not have been liable to arrest. It is
contended on the authority of Melan v. The Duke de Fitzjames, 1 B. & P.
139, that he is entitled to the relief now sought. We are, however, of
opinion, that he is not. In the case just mentioned, the distinction taken
by Mr. Justice Heath, who differed from the other judges, was, that in
construing contracts the law of the country in which they are made
must govern, but that the remedy upon them must be pursued by such
means as the law points out where the parties reside. This doctrine is
said to correspond with the opinions of Huber and Voet. I have not
had an opportunity of looking into those authorities, but we think, on
consideration of the present case, that the distinction laid down by Mr.
Justice Heath ought to prevail. A person suing in this country must
take the law as he finds it; he cannot, by virtue of any regulation in
his own country, enjoy greater advantages than other suitors here, and
he ought not therefore to be deprived of any superior advantage which
the law of this country may confer. lie is to have the same rights
which all the subjects of this kingdom are entitled to. The rule must
be discharged. Rule discharged. 2
1 The opinion only fs given ; it sufficiently states the case. — Ed.
2 Ace. Imlay v. ELLefsen, 'J Bast, 458 ; Atwater v. Townaend, 4 Conn. 47 ; Smith v.
SpiBolla, 2 .Johns. 198; Anon. (Austria, 12 Dec. 1876), 8 Clunet, 176. — Ed.
528 BULLOCK V. CAIKD. [CHAP. V.
BULLOCK v. CAIRD.
Queen's Bench. 1875.
[Reported Law Reports, 10 Queen's Bench, 276.]
Action by the plaintiffs against the defendant for the breach of an
agreement to build a ship.
The material part of the agreement, wnicn was set out in the declara-
tion, was as follows : —
" Glasgow, July 15th, 1874. Messrs. Caird & Co., shipbuilders,
Greenock, agree to build for Messrs. James and George Bullock & Co.,
London, who agree to accept an iron sailing ship of the following dimen-
sions, &c." Throughout the agreement the parties were mentioned as
Caird & Co. and Bullock & Co.
Plea, that there was a trading partnership or firm domiciled and
carrying on business in Scotland b} r the name of Caird & Co., and the
alleged agreement was an agreement made in Scotland by the plaintiffs
with the firm, and was to be performed wholly in Scotland without the
jurisdiction of the English courts and within the jurisdiction of the
Scotch courts, and by the law of Scotland the firm was and is a sepa-
rate and distinct person from any or the whole of the individual members
of whom it consists and of whom the defendant was and is one, and the
firm, by the law of Scotland, is capable of maintaining the relation of
debtor and creditor separate and distinct from the obligation of the
partners as individuals, and can hold property, and has the capacity of
suing and being sued as such separate person by its name of Caird &
Co. and the alleged agreement was made by the firm as such separate
person and not jointly and severally by the individual members thereof;
that at the date of the agreements the firm consisted of certain individ-
uals, namely, the defendant James Tennant Caird and Patrick Tennant
Caird, and has always since consisted and still consists of the same
members, and the firm and each of its individual members then was and
always since has been and still is domiciled and carrying on business
in Scotland, and within and subject to the jurisdiction of the Scotch
courts and possessed of sufficient property and funds, within and sub-
ject to the jurisdiction to answer in full the claim of the plaintiffs ; that
by the law of Scotland the defendant became and was, as a partner of
the firm of Caird & Co., on the making of the agreement, liable to the
plaintiffs for the satisfaction of any judgment which might be obtained
against the firm or the whole of the individual partners thereof jointly
for any breaches of the agreement ; and save as aforesaid no liability by
the law of Scotland attached or attaches to the defendant in respect of
the agreement ; that by the law of Scotland it is a condition precedent
to any individual liability attaching to the defendant or any individual
members of the firm in respect of the agreements that the firm as such
person as aforesaid or the whole individual partners thereof jointly
CHAP. V.] LE K0V "■ BEAKI '-
should first have been sued, and that judgment should have been re-
cove ed against the firm or the whole of the said partners jointly, and
hat t ntaiutitfs have not sued the firm of Caird & Co nor he whole
of the partners jointly, uor recovered judgment agamst .t or them.
a bod cor ^at Thc q p.ea alleges that the firm, or the „hoh> 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 als<? all con-
tracts made, and acts done within it. A State may, therefore, regu-
late the manner and circumstances under which property, whether
real or personal or in action, within it shall be held, transmitted,
bequeathed, or transferred, or enforced; the. condition, capacity, and
state of all persons within it ; the validity of contracts, and other
acts, done within it ; the resulting rights and duties gi-owing out of
these contracts and acts ; and the remedies, and modes of adminis-
tering justice in all cases calling for the interposition of its tribunals
to protect, vindicate, and secure the wholesome agency of its own
laws within its own domains.
No State or nation can, by its laws, directly affect or bind property
out of its own territory, or persons not resident therein, whether they
are natural born subjects or others. This is a natural consequence of
the first proposition ; for it would be wholly incompatible with the
equality and exclusiveness of the sovereignty of any nation that other
nations should be at liberty to regulate either persons or things within
its territories. It would be equivalent to a declaration that the sov-
VOL. II. — 1
2 GENERAL PRINCIPLES. [CHAP. VI.
ereignty over a territory was never exclusive in any nation, but only
concurrent with that of all nations ; that each could legislate for all,
and none for itself; and that all might establish rules, which none
were bound to obey.
Although the laws of a nation have no direct binding force or
effect, except upon persons within its territories, yet every nation has
a right to bind its own subjects by its own laws in every other place.
In one sense, this exception may be admitted to be correct, and well
founded in the practice of nations ; in another sense it is incorrect, or,
at least, it requires qualification.
No nation is bound to respect the laws of another nation, made in
regard to subjects who are non-residents. The obligatory force of
such laws cannot extend beyond its own territories. And if such laws
are incompatible with the laws of the country where they reside, or
interfere with the duties which they owe to the country where they
reside, they will be disregarded by the latter. Whatever may be the
obligatory force of such laws upon such persons, if they should return
to their native country, they can have none in other nations where
they reside. They may give rise to personal relations between the
sovereign and subjects, to be enforced in his own domains ; but they
do not rightfully extend to other nations. Clauduntur territorio. Nor,
indeed, is there, strictly speaking, any difference in this respect
whether such laws concern the persons or the property of native
subjects. A State has just as much intrinsic right, and no more, to
wive to its own laws an extraterritorial force, as to the property of its
subjects situated abroad, as it has in relation to the persons of its
subjects domiciled abroad. That is, as sovereign laws, they have no
obligation or power over either. When, therefore, we speak of the
right of a State to bind its own native subjects everywhere, we speak
only of its own claim and exercise of sovereignty over them, and not
of its right to compel or require obedience to such laws on the part of
other nations. On the contrary, every nation has an exclusive right to
regulate persons and things within its own territory according to its
own sovereign will and polity.
From these two maxims or propositions there flows a third, and that
is, that whatever force and obligation the laws of one country have in
another, depends solely upon the laws and municipal regulations of
the latter ; that is to say, upon its own proper jurisprudence and polity,
and upon its own express or tacit consent.
The jurists of continental Europe have with uncommon skill and
acuteness endeavored to collect principles which ought to regulate
this subject among all nations. But it is very questionable whether
their success has been at all proportionate to their labor, and whether
their principles, if universally adopted, would be found either conven-
ient or desirable under all circumstances.
The true foundation on which the administration of international
law must rest is, that the rules which are to govern are those which
SECT. 1.] GENERAL PRINCIPLES. 3
arise from mutual interest and utility, from a sense of the inconven-
iences which would result from a contrary doctrine, and from a sort
of moral necessity to do justice in order that justice may be done to
us in return.
Dicey on tiie the Conflict of Laws (1896), p 25. — The object
for which courts exist is to give redress for the infringement of
rights. No court intends to confer upon a plaintiff new rights, ex-
cept in so far as new rights may be necessary to compensate for, or
possibly to guard against, the infringement of an existing right. The
basis of a plaintiffs claim is that, at the moment of his coming into
court, he possesses some right, e. </., a right to the payment of £20,
which has been violated ; the bringing of an action implies, in short,
the existence of a right of action. When, therefore, A applies to
an English court to enforce a right acquired in France, he must
in general show that, at the moment of bringing his action, he
possesses a right which is actually acquired under French law, and
which he could enforce against the defendant if he sued the defendant
in a French court. A complains, for example, of the non-payment of
a debt contracted by X in Paris, or seeks damages for an assault com-
mitted on him by X in Paris. To bring himself within the principle
we are considering, he must show that his right to payment or to
damages is actually acquired. He must show that the debt is due
under French law, or that the assault is an offence punishable by
French tribunals. English law does not, speaking generally, apply to
transactions occurring out of England ; hence the foundation of A's
claim is that he wishes to enforce rights actually obtained in France,
and he will, as a rule, fail to make out his case unless he can show
that the grievance of which he complains is recognized as such by
French law, or, in other words, unless he can show a right to redress
recognized by the law of France.
Whether such a right actually exists, i. e., whether A has an " ac-
quired right," is a matter of fact depending upon the law of France
and upon the circumstances of the case.
Pillet, " Essai d'un systeme general de solution des conflits des lois "
(1894), 21 Clunet, 417, 711. — Whenever the question is raised as
to the international nature of a law, one of two answers must be given ;
the law may be either territorial or extraterritorial. It may be terri-
torial, and then every one in the country is submitted to its jurisdiction
without distinction between natives and foreigners domiciled or not
domiciled, but, upon the other hand, on leaving the country, each
ceases to owe it obedience ; or it may be extraterritorial, and the
contrary effect produced ; where upon once being applied to a person
(by virtue of his nationality or his domicil, opinions differ) the law
follows him everywhere. . . .
Law should combine, and always does combine, certain characteristics
4 GENERAL PRINCIPLES. [CHAP. VI.
which are indispensable to its effect, qualities without which it would
have no reason for existence. . . . We shall notice here but two,
the only important qualities from an international point of view,
but of the utmost importance : continuity and generality of application.
When we say that law is by its nature continuous, we mean that its
authority should be uninterrupted ; from the day of its promulgation to
the day of its repeal the law must always be heard and obeyed. . . .
It is just as necessary that every law should be general in application
to its subjects. . . . Order is necessary to every State, and order
exists in the domain of law only in so far as the law is applied without
distinction to every person within the limits of the State. . . .
From an international point of view, continuity necessarily implies
extraterritoriality, generality of application, territoriality. . . . For
a law to be truly continuous, it must apply under all circumstances
to the person subject to it, it must follow him abroad when he leaves
his country, and it must rule all his affairs there as well as in his
own country. ... To take the common example of a law of capacity :
suppose it ceases to apply to a person when he leaves his own country,
or that it only remains inapplicable to such of the person's property as
is situated in a foreign country, and it will be clear that the law misses
its object because it misses continuity of effect. . . . One can see that
if, in the case of the same person, a period of complete incapacity
is followed by a period of limited capacity, all the results that the
legislator might attain by the rules he established will be forever
compromised by the breach of continuity which will be produced in
the application of the rule. In the same way generality is inseparable
from territoriality. . . . That order which it is the object of the law
to establish would not exist, unless all matters within the control
of the society which is ruled by the law were equally subject to
its provisions. . .
Now let us see what would happen if each State in administering
justice should carry the consequences of this situation to its logical
conclusion. ... No State would then suffer the application of any
foreign law in its territory. Trusting in the generality of its own law,
and the territoriality which logically flows from it, the State would as-
sert its authority in all foreign interests which asked aid of its justice.
But on the other hand, by a deduction drawn from the character of
continuity and extraterritoriality, equally belonging to it, it would
apply its own law also to the interests of its own subjects in foreign
lands. One must conclude that the harmony which should exist
between the laws of various countries can be obtained only through
a sacrifice. . . .
The solution of this question cannot depend in every case on the
will or the fancy of the one who, as jurisconsult, or as judge, has it
to solve. In other words, the territoriality or the extraterritoriality of
laws cannot be abandoned to arbitrary will, or as we say, in terms
at once fitter and more classic, to the comity of nations. . . . We
SECT. I.] GENERAL PRINCIPLES. 5
must discover some law of harmony, choose indifferently or for simple
reasons of equity, either the territoriality of laws or their extraterri-
toriality ; find the principle of harmony which will destroy as little as pos-
sible the useful effect of the law, or in other words leave intact as great
part as possible of the authority of law. . . . Let us suppose a conflict
on the age of majority, in our country twenty-one years, but by the
foreign personal law of the party twenty-five years. The French judge
has before him two solutions, two means of putting an end to conflict
and establishing harmony : to apply the local law by virtue of its terri-
toriality, or the personal law of the foreigner by virtue of its extraterri-
toriality. Each of the solutions has its advantages and disadvantages.
The first is more favorable to the public order and credit; if it is
adopted, every one within the territory will be of age at twenty-one
years, and one will never have to suspect hidden facts which may lead
to the application of a foreign law. On the other hand, it will have the
disadvantage that the foreigner in question will suddenly come of age
upon crossing the boundary of the country. The other solution would
have neither this disadvantage nor the corresponding advantage. Can
one suppose that a judge, if not bound by any provision of positive
law, could hesitate between the two? The experience of the past
answers the question clearly. Hesitation is impossible, because, of the
two solutions, the first in return for a slight advantage involves a
disadvantage which almost totally destroys the utility of such a law.
What is the use of prolonging minority until a given age, if the minor
may by a journey free himself from the incapacity ? Such a solution
reduces almost to naught the authority of the law on this point, whilst
the other solution maintains the chief and essential features of its
authority, and sacrifices only a territorial effect of little importance
in this connection. . . . The great school of " statutaries " thought
that the international effect of laws should depend on their object;
meaning by this ambiguous word, object, the person or thing which
is directly and immediately affected by the law. We thus reach the
essential distinction between the two classes, — real laws which were
territorial, and personal laws recognized as extraterritorial, — so com-
pletely that the two expressions were synonymous. . . . The extra-
territorial application of laws relative to the person did not cease
to cause them doubt and even remorse. They accepted it, but usually
in spite of themselves; as is sufficiently proved by the eagerness with
which they recurred to territoriality whenever on the slightest pretext
they deemed themselves authorized to do so. In fine, the distinction
made by this school, even supposing it applicable to the facts
(which the invention of "statutes mixed" shows to be doubtful)
had no principle behind it; this error was its greatest, but it was
irremediable. . . .
One cannot deny that the essential feature of law is its social object.
If, in fact, one analyzes the idea of law in any one of its applications,
one necessarily reaches this fust conclusion, that law is always l he means
6 GENERAL PRINCIPLES. [CHAP. VL
employed by the legislator to reach a determined social object. . . .
The object of a law is not the immediate effect it has in view : that is
the very content of the law, the means employed by the legislator to
reach the object, not the object itself. . . . The social object to be
attained is the raison d'etre of the law, gives it its distinctive character-
istics, assigns it its period ; is it not logical, therefore, to conjecture
that its international effect should be measured b}' its social object?
Such is in fact the rule we propose. We know that laws are by nature
at once territorial and extraterritorial, that they may in international
relations preserve but one of these characters ; we think that in each
case the choice of character should be determined by considering the
social object of the law. We shall declare territorial all laws the object
of which could not be attained if in each country they did not apply as
well to foreigners as to citizens ; extraterritorial all laws the object of
which requires that they should follow everywhere the person who comes
under the force of their provisions. In every case, then, we shall consult
the social object of the law under examination ; that will be the only
key to the problem of conflicts, the rule by which we shall resolve
whether a law should be regarded as territorial or extraterritorial. . . .
Like the needs which it is their purpose to satisfy, laws can have one
only of two objects : to protect the private interests of individuals, or
to secure the conditions of existence and the functional operations of
the bod}' politic. That is their social object, the result to which they
tend ; a result which concerns the legislator only by reason of the in-
fluence it exercises on the condition of societ} - . To the first category
will belong laws which have for their end to place the individual in the
position most favorable for his development and preservation ; such are
laws of the family, which have for end to establish in the persons con-
cerned a unity of interests and responsibilities conforming to their
natural affinities ; in the same way, laws which have for end to advise,
to guide those who cannot look out for themselves ; finally, those which
will have the good result of saving one from his own devices. To the
same category belong laws destined to assure to every one the fruits of
his toil. The second class of laws is made up of those which have for
their end to determine the general conditions of society ; one will gen-
erally recognize them easily by the circumstance that within the borders
of a country they interest all persons equally, whatever their condition,
because the interest of each one in having them observed is the same
as the interest all have in the maintenance of the political body based
upon them. . . .
Laws for individual protection should be extraterritorial. This is in
fact implicitly included in the very idea of protection. For protection
to be efficacious it must be complete, or, to return to familiar terms,
continuous. It should be continuous in time and space ; suffer no
interruption, for one moment of interruption always compromises, and
may suffice to ruin the effect of long continued protection. It must be
continuous in space, b} - which we understand that the person should
SECT. 1.] GENERAL PRINCIPLES. 1
be protected everywhere; and if, fis often happens, he owns goods in
several countries, thus subjected in fact to several different sovereign-
ties, the law which protects him should extend to all his interests in
spite of differences in the laws which complicate matters. All pro-
tection is armor, which does not fulfil its office unless it is without
flaw. . . .
Laws for the security of society include all provisions deemed by the
legislature necessary to the existence of the State, and to the perform-
ance of its various functions. It is of the first importance that within
a country all wills without exception, including both natives and for-
eigners, should yield obedience to laws for the security of society.
These laws are imposed on citizens only because they are absolutely
requisite for the interest of society; those sacrifices of interest re-
quired of citizens may all the more be required of foreigners, mere
guests. . . .
Does a law have in view individual interests or the interests of
society? Supposing it to be applied, is it the individual to whom it is
applied who will be benefited, or is it society as a whole? . . . One
may ask (which amounts to the same thing) whether an individual or
the body politic would suffer loss by its repeal or non-enforcement. . . .
A third method may be usefully employed in the most embarrassing
cases. When a law has been made for the purpose of the security of
society, all citizens profit equally every time it is applied ; if it has
been made for the protection of individuals, those benefit by it directly
who enjoy the rights it creates, and the common good is only an in-
direct and minor consequence of the good of those individuals. Let us
consider together two doctrines, the right and the lack of right, respec-
tively, to establish paternity. They seem equally to concern the State
and individuals. The law which authorizes the establishment of pater-
nity may seem to be a law for the security of society, for it facilitates
the natural classification of individuals ; but it is easy to see that society
derives advantage from its provisions only as a result of the fortunate
effect which its application has upon the condition of the parties. To
the legitimate child it is a matter of entire indifference. On the other
band, the law which forbids it has evidently been passed not out of
favor to the seducer, but by reason of a quite legitimate fear of the
scandal which such suits cause. No one can claim an individual in-
terest in the application of this law, but all the members of society have
an equal interest in its being observed ; the interest is entirely political,
and the rule should be regarded as territorial.
8 MALE V. ROBERTS. [CHAP. VI.
SECTION II.
CAPACITY.
MALE v. ROBERTS.
Nisi Prius, in the Common Pleas. 1800.
[Reported 3 'Espinasse, 163.]
Assumpsit for money paid, laid out, and expended, to the use of the
defendant ; money lent and advanced, with the other common money
counts.
Plea of the general issue.
The case, as opened by the plaintiff's counsel, was, that the plaintiff
and the defendant were performers at the Royal Circus. While the
company were performing at Edinburgh, in Scotland, the defendant
had become indebted to one Cockburn, for liquors of different sorts,
with which Cockburn had furnished him ; not having discharged the
debt, and it being suspected that the defendant was about to leave
Scotland, Cockburn arrested him, by what is there termed a Writ of
Fuge, the object of which is to prevent the debtor from absconding.
The defendant being then unable to pa}- the money, the plaintiff paid
it for him ; and he was liberated. The present action was brought to
recover the money so paid, as money paid to his use.
The defence relied upon was, that the defendant was an infant when
the money was so advanced.
Lord Eldox. It appears from the evidence in this cause, that the
cause of action arose in Scotland ; the contract must be therefore
governed by the laws of that country where the contract arises.
Would infancy be a good defence by the law of Scotland, had the
action been commenced there?
Best, Sergeant, for the defendant, contended, that the contract was
to be governed by the laws of England ; in which case, the plaintiff
could recover for necessaries only. That at all events it should not
be presumed that the laws were different; and as it appeared that
the debt did not accrue for necessaries, the plaintiff could neither
recover on the counts for money paid, or for money lent to an
infant.
Lord Eldon. What the law of Scotland is with respect to the right
of recovering against an infant for necessaries, I cannot say ; but if
the law of Scotland 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
by the law of Scotland, because it is void by the law of England. The
SECT. II.] COOPER V. COOPER. 9
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.
The plaintiff failed in proving his case, and was nonsuited. 1
COOPER v. COOPER.
House of Lords (Scotch Appeal). 1888.
[Reported 13 Appeal Cases, 88.]
Lord Halsbury, L. C. 2 My Lords, in this case the appellant, the
widow of a domiciled Scotchman, seeks to set aside an antenuptial
contract executed by her on the day of her marriage.
A question has been raised whether the contract was not in fact
executed after the celebration of the marriage ; but, without minutely
considering the evidence, I am satisfied with the conclusion of the Lord
Ordinary, that the contract was executed before the marriage, a con-
clusion which, indeed, is but feebly contested on the other side.
A Scottish widow is entitled to her jus relictm and to her terce,
unless they have been discharged ; and the appellant seeks to remove
t e bar to these rights by setting aside the contract in question which,
if unimpeached, discharges these rights.
My Lords, I think there has been some slight confusion between the
question what forum can decide the controversy between the parties
and what law that forum should administer in deciding it. Now it is
admitted that the app^ llant was a domiciled Irishwoman at the time she
executed the instrument in question. It is admitted she was a minor ;
and apart altogether from the remedy peculiar to Scottish jurisprudence
of setting aside a contract which operates to the enorm lesion of a
minor, a question t< be determined in a great measure by the position
of the parties and the pr 1 ions of the contract itself, the first question
arises here whether a domiciled Irishwoman could bind herself at all,
while a minor, by a contract executed in Ireland.
There can be no doubt as to what would be the rule of English law
in this respect. The line of cases which were brought to your Lord-
ships' attention upon the subject of provisions whereby the common-
law right of dower was extinguished seem to me beside any question in
this case. The statute created the power of extinguishing the right to
dower, and Courts of Equity have from time to time considered and
1 Ace. U. S. v. Garlinghouse, 4 Ben. 194 (semble); Appeal <>f 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 /</ re Hellmann'e Will, L, K. 2 Rq. 363, — Ed
30 WOODWARD V. WOODWARD. [CHAP. VI.
testator intended it to be paid over according to the law of his own
domicil, requiring guardians to receive and receipt for the fund devised
to minors. That the court gave no attention to such considerations,
is shown by the order made with reference to the boy, in directing that
the fund should be paid to him when he attained his majority, either
under the law of England or under the law of his domicil, whichever
first happened.
This court has recognized the doctrine contended for by petitioner
in the case of Robinson v. Queen, decided at Nashville and reported
in 87 Tennessee, 445, where it is held that the judicial proceedings,
under the laws of the State of Kentucky, emancipating married women
from the disability of coverture, would be recognized and enforced in
this State to the extent of allowing an action to be brought and main-
tained in the courts of this State against such married woman, on a
note made by her in the State of Kentucky as surety for her husband,
clearly recognizing that her status as a person sui juris fixed by judi-
cial proceedings in the State of her domicil, would have full force and
effect in this State.
To the same effect is the text in Wharton's Conflict of Laws, § 114,
where the learned author says :
"A foreigner who is capable of business at his domicil must be
recognized as so capable by our laws, even though if domiciled among
us he would be incapable."
A near analogy to the present case, with reference to the recognition
in one State of the status fixed by the law of the domicil is to be
found in the case of children born out of wedlock, but made legitimate
afterward according to the laws of their domicil, by the subsequent
marriage of their parents. They are deemed everywhere legitimate for
the purposes of inheritance, etc. Andrews v. Andrews, 24 Ch. Div.
637 ; Miller v. Miller, 91 N. Y. 315 ; Scott v. Ney, 11 La. Ann. 232.
This doctrine is generally subject to exception concerning real estate,
which is governed by the lex rei sitce.
The law of divorce also furnishes a close analogy. Thus a divorce
in a foreign jurisdiction for a cause which is not competent in the State
of marriage, is recognized as valid in the latter if the former had juris-
diction of the parties for the purposes of the suit. Sewall v. Sewall,
122 Mass. 158 ; Clark v. Clark, 8 Cushing, 385 ; Barber v. Root, 10
Mass. 260.
In Stephens v. McFarland, 8 Irish Eq. Rep. 444, we have a case
where a minor was insolvent in Southern Australia, by the laws of
which a minor could be so adjudged ; his assignee attempted in Ireland
to obtain the real and personal property that passed to him under his
father's will. The bill was demurred to and the demurrer overruled,
the assignee being adjudged to have the title of the property coming
to the insolvent minor.
The converse of the present case is found in Kohne's estate, 1 Par-
sons' Select Eq. Cases (Penn.), 399 ; the direct point was that the
SECT. II.] WOODWARD V. WOODWARD. 31
power of attorney of a minor, who bad not reached her majority by the
law of her domicil, would not be recognized in Pennsylvania, although
by the law of Pennsylvania she was then of full age. The judge
delivering the opinion said, among other things, "that according to
our law, in common with those of the civilized world, questions of
minority and majorit}', in all controversies respecting personal estate,
are to be determined according to the laws of the country in which the
minor held his actual domicil, whether natural or acquired." See
Story's Conflict of Laws, §§ 64, 65, 66, and 69.
Pothier states the rule thus: "The change of domicil delivers
persons from the empire of the laws of the place they have quitted, and
subjects them to those of the new domicil they have acquired."
Mr. Justice Story, after presenting the several views of some of the
civil law writers who discuss the subject, says, at section 71 : " Boullen-
ois himself does not hesitate to declare the general principle to be
incontestable, that the law of the actual domicil decides the state and
condition of the person, so that a person by changing his domicil
changes at the same time his condition."
The effect of the statute of Louisiana, under which the disabilities
of this minor were removed, has been adjudged b}* the highest court
of that State.
Thus, in 36 La. Ann. 250, it is said : " It places the minor thus
freed on the same plane with the major, and invests him with identi-
cally the same rights, and subject to equal responsibilities. In other
words, instead of leaving him subject to the operation of the general
law, and making him wait until he is twenty-one years of age, it
virtually and in effect fixed and established his majority at an earlier
period of life, — that is, at any time when he shall have passed the age
of eighteen years." So fully is his majority established that he is capa-
ble of filling the office of administrator, just as if twent}-one years of
age. 12 La. Ann. 155. Under this legislative emancipation the party's
disabilities of infancy are all removed. 6 Robinson, 429 ; 9 La. Ann.
155 ; 36 La. Ann. 250. He is estopped by it, and those dealing with
him need look no further than his free papers. 36 La. Ann. 616.
The case of Galbraith v. Buner, 65 Mo. 349, urged by counsel for
defendant as furnishing strong authority for their contention here, is
not, in our opinion, entitled to the weight insisted upon. The case is
extremely brief in its discussion, and assumes the very point in contro-
versy, without reference to the various authorities bearing thereon.
Mr. Wharton, in his work on Conflict of Laws, at section 114, says
of this case that it is "exceptional" and "arbitrary." Moreover, it
may be distinguished from the case now before us in this, that the
proceedings in Arkansas, the State of domicil of the minor, seem to
have had for its object the emancipation of the minor onlv pro tanto
— that is to say, the minor's disabilities were removed to the extent of
authorizing him to go into the State of Missouri and there collect and
receipt for the particular fund in the hands of his Missouri guardian.
32 d'hervas v. bonnak. [chap. VI.
It was not an out and out removal of all the disabilities of minority,
but a special commission authorizing an incursion into the State of
Missouri for the purpose of receiving and receipting for a particular
fund. The Arkansas statute is not before us, and we only know its
contents by the statement thereof, found in this Missouri case, from
which it is apparent that it differs widely from the broad and compre-
hensive proceedings in Louisiana, whereby the petitioner in the case at
bar was thoroughly and entirely emancipated from all disabilities, and
her status fixed as a major in Louisiana, from which she claims the
right to have her status recognized in other sovereignties.
So far we have traveled a broad and well-defined road, from which
there is no variableness nor shadow of turning, every step of which is
marked by well considered authority of the highest repute. 1
Under the view we take of the law governing this case, the petitioner
has attained her majority under the laws of the State of her domicil,
and this court, recognizing the status of capacity as thus fixed by the
law of her domicil, will declare her of full age, so far as her right to
demand and receive from an}' one having property in their possession
belonging to her, to which she would be entitled upon attaining full
age in this State.
In other words, being of full age in Louisiana, the State of her domi-
cil, she is of full age in this State, under the principles of private
international law obtaining in such cases.
Let the judgment be reversed, and the case remanded for further
proceedings.
D'HERVAS v. BONNAR.
Court of Cassation, France. 1833.
[Reported Sirey, 1833, I. 663.]
In 1812 Mme. Willeminot, a Frenchwoman, married at Madrid M.
d'Hervas, a Spaniard, and thus became a foreigner. Soon after their
union, they removed to France, and there established themselves in
business and acquired real estate.
On Nov. 9, 1820, Mme. d'Hervas became bound, jointly with her
husband, as debtor to M. Bonnar for a sum of 100,000 francs, to
secure which she mortgaged to him the estate of Beaugez, belonging
to her.
The obligation not having been performed, M. Bonnar brought
action against Mme. d'Hervas to obtain the land. She however al-
leged that the obligation was void, on the ground that b}- the Spanish
law a wife cannot bind herself jointly with her husband, nor give se-
curit} 7 for him. M. Bonnar denied the application of Spanish law to
1 The court proceeded to discuss the question of domicil. — Ed.
SECT. II.] COURT THEATRE OF HANOVBE V. G. 33
an obligation contracted in France by a Spanish woman domiciled
there, and secured by goods situated in Fiance.
The Tribunal of the Seine, June 4, 1827, dismissed the action. On
appeal, the Royal Court of Paris reversed the judgment. 1 Appeal by
31 me. d'Hervas, for violation of the principles as to statute personal
contained in Articles 3 and 1 1 of the Civil Code.
The Court. It is not here a question either of the status of Mme.
d'Hervas, or of any right guaranteed by a diplomatic convention be-
tween France and Spain, to the citizens of one country living in the
other ; but of the validity of an obligation assumed in France by a
foreigner, who there had ■ a domicil and lauded property. In this
affair 5 the judgment could not have violated Art. 11 of the Civil Code,
since that article secures to a foreigner in France the enjoyment of
the same civil rights as are granted to Frenchmen by the treaties of
the foreigner's nation.
Though Art. 3 declares that laws concerning the status and capacity
of persons govern Frenchmen even while residing in a foreign country,
it contains no similar or analogous provision in favor of foreigners
residing in France ; whence it results that the judgment appealed from
could not have violated this article.
By the terms of the same article, immovables in France owned by
foreigners are governed by French law ; and in deciding that Mme.
d'Hervas was held to execute an obligation which she had contracted
under the authority of the French laws, with a mortgage on her land
situated in France, the judgment made a proper application of the
French laws which govern this obligation. 2
MANAGER OF THE COURT THEATRE OF HANOVER v. G.
Supreme Court at Celle (Hanover). 1846.
[Reported 13 Seuffert's Archiv, 102.]
The singer Louise G. of Vienna on Nov. 9, 1840, with the assent
of her mother (her pretended guardian), concluded an engagement with
the Manager of the Court Theatre of Hanover. The singer G. after-
wards refused to carry out the contract, and the Manager brought suit.
The Austrian law, according to the Manager's contention, did not de-
prive of all effect the engagements of a minor entered into without the
assent of her guardian ; while according to the law of Hanover such
engagements were null and void. The question therefore arose, by
what law the legal capacity of a [tarty to a contract must be judged.
1 The judgment «f the Royal Court, and the arguments in the Cassation, are
omitted. — Ed.
2 Contra, Knimhert v. Glerdenl (Liege,3l Dec. '79), Panic. Belg. 1880, 2,122.— Ed-
VOL. II. — 3
34 DE LIZAKDI V. CHAIZE. [CHAP. VL
The Court. The rule must always be, that a court shall decide
according to the law of the land. The exception to this rule, based
solely on peculiar usage, according to which the minority of a foreigner
is determined b}' the law of his domicil, cannot be extended in the
decisions so as to cover the legal consequences of such minority. The
effect of the defendant's agreement, attacked as the contract of a minor,
is therefore to be determined by our law.
DE LIZARDI v. CHAIZE.
Court of Cassation, France. 1861.
[Reported Journal du Palais, 1862, 427.]
M. de Lizardi, a Mexican, then over twenty-one years old, but still
a minor b} 7 Mexican law, bought of Chaize, Rigaud, Delamarre and
Bablin, in 1853 and 1854, jewels to a considerable amount, and in
payment signed notes and bills of exchange. In 1857, having come
of age by the law of his country, M. de Lizardi summoned M. Chaize
and partners before the Tribunal of the Seine, to have declared void
as made during minority all the obligations he had given them.
To this petition the defendants answered that at the time they dealt
with him M. de Lizardi was of age by French law ; that they were
ignorant of his foreign nationality ; that they contracted in good faith ;
and that the obligations were therefore binding. They also filed a
cross-claim for the payment of the amounts he owed them.
The tribunal found for the defendants upon the original petition,
and allowed the cross-claim. On appeal to the Court of Paris the
judgment was affirmed. 1 The petitioner appealed.
The Court. Though the statute personal, the application of which
to French citizens residing in a foreign country is assured by the
French civil law, may .on the principle of reciprocity be invoked by
foreigners residing in France, yet it is proper in applying the foreign
statute to enforce restrictions and limitations without which there would
be constant danger of error or surprise to the prejudice of French
citizens. Though on principle one is bound to know the capacity of
the person with whom one enters into a contract, the rule cannot be
so strictly and rigorously applied with regard to foreigners contracting
in France. Civil capacity may in fact be easily verified in the case
of transactions between French citizens ; but it is otherwise as to
transactions that take place in France between Frenchmen and foreign-
ers. In such a case, the Frenchman cannot be held to know the laws
of various nations, and their provisions as to minority and majority
and the extent of the power of foreigners to make agreements within
1 The judgments of the lower courts and arguments of counsel are omitted. — Ed.
SECT. II.] FOURGEAUD V. SANTO VENIA. 35
the limits of their civil capacity. It is sufficient for the validity of the
contract that the Frenchman has acted without laches and negligence
and in good faith.
It is not shown that the defendants knew the petitioner's foreign
nationality when they dealt with him ; it follows from the facts found
in the lower court that in making sales to him in the regular course
of business they acted in entire good faith ; the price, though large,
was not out of proportion to Lizardi' s fortune; these things were
delivered in presence of his relatives and without opposition on their
part ; from some of the objects sold the petitioner has realized a profit ;
nothing could lead the present defendants to suspect that Lizardi,
though aged more than twenty-one years, was yet a minor by the laws
of his country.
These facts, recited in the judgment, sufficiently justify the main-
tenance of agreements undertaken by Lizardi with the present defend-
ants, and no law was violated by the judgment.
Appeal dismissed. 1
FOURGEAUD v. SANTO VENIA.
Court of Paris. 1879.
[Reported 6 Clunet, 488.]
The Court. The fact is clear that Joseph, Count of Santo Venia,
is of Spanish nationality ; and at the time he accepted the drafts drawn
on him by Therese Bimet (discounted by Fourgeaud, Simon Bugniet &
Cie.) he was more than twenty-one years old, but a minor according
to the Spanish law, his statute personal, which fixes the age of majority
at twenty-five. The question is whether the Count of Santo Venia,
who has accepted drafts in which he described himself as domiciled at
Paris, can set up against bona fide holders his foreign nationality and
his minority by the rule of his national law ; and whether these bona
fid< holders were bound at their peril to ascertain the real capacity of
the acceptor.
Though the laws which govern the status and capacity of persons fol-
low those persons wherever they go, whatever be their domicil of origin,
yet one must remember that the application of the foreign statute is sub-
ject to restrictions and limitations required by the legitimate interest
of citizens of France who have become creditors by regular legal bank-
ing operations. Fourgeaud, Simon Bugniet e£ Cie. did not deal directly
with the Count of Santo Venia ; they dealt only with Theivse Bimet,
1 Ace. Cnssac v. TIartop; (Paris 1883), 10 Clunet, 290. In a similar case the Civil
Tribunal of the Seine said: " It is a principle of natural law and of the public order
of France that no one shall enrich himself at the expense of another; such a rule,
like laws of police and of safety, bind, without, distinction of origin or nationality, all
who are on French soil." 14 Clunet, 17«. — Ki>.
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 Kn<r-
land. Keating, J. — Brook v. Brook does not decide that the mar-
riage in question was bad at Altona. The Judge Ordinary. — Could
a foreigner, b}- the laws of his own country a minor till twenty-five,
plead in infancy here to a bond executed at twenty-two?]
1 apprehend not.
[The Judge Ordinary. — Then, could a foreigner, capable of marry-
ing by his municipal law, but incapable by ours, contract a valid mar-
riage here?]
Sik Cresswell Cresswell, Judge Ordinary. This state of facts
presented two very important questions for our consideration: first.
whether this court has any jurisdiction over Leon Mallac, the parts'
cited ; and, secondly, assuming that such jurisdiction exists, whether,
according to the law of this country, the marriage solemnized is to
be held null and void. We had the advantage of a learned argument
1 This Btatement of facts is condensed from tlmt of the Reporter. l';irt .,f the
argument of counsel w omitted. — Ed.
52 SIMONIN V. MALLAC. [CHAP. VI.
on behalf of the petitioner, and feel that the responsibility cast upon
the court is greatly increased by the want of any such assistance
on the other side. The argument in favor of the jurisdiction of the
court was rested on the ground, first, that the contract was made
in England, and that the court is called upon for its decision with
regard to the effect of a civil and religious English contract, celebrated
under an English statute (4 Geo. IV. c. 76), and that the tribunals
loci contractus have, generally speaking, cognizance of the contract ;
secondly, that England is now the domicil of the petitioner, but that
assertion begs the main question in dispute, for if the marriage be
valid it is not her domicil ; thirdly, that the respondent was personally
served with the citation and petition, and has not appeared to contest
the jurisdiction of the court. The 42d section of the statute 20 & 21
Vict. c. 85, by which this court was established, removes all objection
on the ground of the citation having been served without Her Majesty's
dominions, but, in our opinion, would not of itself suffice to give to
the court authority to decide upon the rights of a party not otherwise
subject to its jurisdiction. This question, therefore, depends upon the
first proposition, that the parties by professing to enter into a contract
in England, mutually gave to each other the right to have the force and
effect of that contract determined by an English tribunal. Huber,
65. tit. 1, De Foro Competente, § 5, says, " Sequitur causa fori
tertia quam rem gestam esse diximus eamque vel e contractu vel ex
delicto admisso." In another place he adds, "Si reus illic haberi
posset " ; and the same doctrine is to be found in John Voet,
Boullenois, Donellus, and Story. The Common Law Procedure Act
(15 & 16 Vict. c. 76), § 19, which allows a writ of summons to be
issued against a person residing out of the jurisdiction, and not being
a British subject, and proceedings to be had thereon, notice of such
writ having been served on the party, appears to have been founded
on this principle ; and section 42 of the 20 & 21 Vict. c. 85, already
adverted to, removes all difficulty as to service of process, although the
party cited is a foreigner by origin and domicil. There is nothing
contrary to natural justice in calling upon him to have the validity
or invalidity of a supposed contract ascertained and determined by the
tribunal of the country where it was entered into by him ; for,
according to Lord Stowell, in Dalrymple v. Dalrymple, 2 Hag. Cons. 61,
" It is an indisputable 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 knowledge, he must take the inconveniences
resulting from such ignorance upon himself, and not attempt to throw
them upon the other party." We think, therefore, that this court
is competent to entertain the present suit, and to adjudicate upon
the petition presented by the party calling herself Valerie Simonin,
which prays the court to decree that the pretended form or ceremony
of marriage had between the petitioner and Leon Mallac was and is
SECT. III.] SIMONIN V. MALLAC. ^»3
void and of no effect in law whatsoever. This, which is the second
question to be determined, is, no doubt, of the gravest importance,
and, as far as this court has been able to ascertain, primes impressionis.
No decision on the point was cited to us by the learned advocate for
the petitioner, and we have not had the benefit of any other diligence
save our own, in the attempt to discover precedents for our guidance.
The question is this, — Whether a marriage duly solemnized in
England, in the manner prescribed by the law of England, between
parties of full age and capable of contracting according to that law,
is to be held null and void, because the parties to that marriage being
foreigners contracted it in England in order to evade the laws of the
country to which they belonged, and in which they were domiciled?
It may, indeed, be doubted whether the evidence of the petitioner
established the intention to evade the law of France, and whether that
which the witness Auguste Noel called a Statute of Limitations, viz.,
section 183 of the Code Napoleon, did or did not operate to bar the
right of the petitioner to institute this proceeding four years after
the marriage was solemnized. But we pass over those points in order
to deal with the broad and important question that has been raised.
It was contended that the parties being French, the law of that country
affixed to them an incapacity to contract marriage without attending
to the formalities prescribed, and that such incapacity was a personal
status which travelled with them everywhere, and rendered them
incapable of making a valid contract in any other country. But,
according to the evidence, such incapacity to contract was not absolute,
but conditional only ; and a contract made by them would be good
unless they came here with the intention to evade the law of France.
So, a contract made here would be unimpeachable if ratified by the
subsequent assent of the parents, and a contract made, here would
be perfectly valid, unless impeached within a certain time ; and, there-
fore, a marriage contracted between a man and woman of the re-
spective ages of twenty-five and twenty-one, without attending to the
formalities' prescribed by the Code Napoleon, 151, 152, 153, and 154,
may receive a different consideration from one absolutely prohibited by
Article 148, by parties respectively under those ages. But taking the
decree of the French court in the suit there instituted as evidence
that, by the law of France, this marriage was void, we again come
to the broad question, — is it to be judged of here by the law of England,
or the law of France? In general, the personal competency or
incompetency of individuals to contract has been held to depend upon
the law of the place where the contract Is made. But it was and is
contended that such rule does not extend to contracts of marriage,
but that parties are, with reference- to them, bound by the law of their
domicil. This question, of so much importance in all civilized com-
munities, has been largely discussed by jurists of all nations; but thej
all apply their observations to controversies arising, not in the countries
where the marriage was celebrated, but in other countries where it
54 SIMONIN V. MALLAC. - [CHAP. VI.
is brought in dispute, and of which the parties were domiciled subjects.
That a marriage, good by the law of the country where solemnized,
should be held good in all other countries, and the converse, is strongly
maintained, as a general rule, by nearly all writers on international
law. But, according to the same authorities, it is subject to some few
exceptions, viz., marriages involving polygamy and incest; those
positively prohibited by the public law of a country from motives of
policy, e. ff., by our Royal Marriage Act. Story, in his Conflict of
Laws, § 113, a, mentions, as a third exception, "Those celebrated
in foreign countries by subjects entitling themselves, under special
circumstances, to the benefit of the laws of their own country." In
several instances, learned judges presiding in our ecclesiastical courts
have stated the general rule without mentioning the exceptions, whence
it has sometimes been contended that they meant to controvert their
existence. But inasmuch as none of the cases referred to fell within
the exceptions above mentioned, it cannot justly be inferred that those
learned persons intended their words to bear so extensive a meaning ;
for they would hardby have repudiated the doctrine of several learned
writers, whose works are always received as worthy of great attention,
without condescending to advert to it in terras, and assigning some
reasons for dissenting from it. In addition to the writings of jurists
as to the existence of such a general rule, by the law of all civilized
nations, we find that in several cases it has been adopted by the courts
of this country as the ground of their decisions.
I believe the earliest of them was Scrimshire v. Scrimshire, decided
by Sir E. Simpson in 1752, and reported 2 Hag. Cons. 395 ; for that
learned judge then said it was a case of pri?nce impressionis. The
judgment is of great value, from the full manner in which he dealt with
the principles on which the court should proceed in adjudicating upon
such cases. The parties were British subjects domiciled in England.
It was a suit for restitution of conjugal rights. The respondent pleaded
that the marriage was celebrated in France ; set forth circumstances
under which that celebration took place, and averred that, by the laws
of FYance, the marriage was null and void. Sir E. Simpson, after
disposing of one or two preliminary points, observed: "The general
questions are two : first, whether there be full and legal proof that the
parties did mutually, freely, and voluntarily celebrate marriage in such
manner as the laws of this country would deem to constitute marriage,
if there was nothing else in the case but a question on the fact of the
marriage. Secondly, whether, if the fact of the marriage should be
proved, this marriage can, b\' the laws of this country, be effectuated
and pronounced to be good, being solemnized in France, where by
law it is null and void to all intents and purposes? For it seemed to
be admitted in the argument that the law was so, but insisted that it
ought not to be a rule of determination in this cause." The first point
he determined in the affirmative, and would have held the marriage
valid had it been agreeable to the laws of France, where it was cele-
SECT. III.] SIMONIN V. MALLAC. 55
brated. " But*' he proceeds, " the great difficulty arises on the second
question, from the marriage being celebrated in France, where such
marriage is null by the law of France." He afterwards says, " The
only question before me is, whether this is a good or bad marriage
by the laws of England, and 1 am inclined to think that it is not good.
On this point, I apprehend it is the law of this country to take notice
of the laws of France or any foreign country, in determining upon
marriages of this kind. The question being in substance this, whether,
by the law of this country, marriage contracts are not to be deemed
o-ood or bad according to the laws of the country in which they are
formed, and whether they are not to be construed according to that
law." He then quoted several passages from Sanchez, J. Voet, and
others, showing that if subjects of a country where clandestine
marriages are prohibited go to another country, where there is no such
prohibition, and celebrate a clandestine marriage there, it is to be held
good; and the converse is established by the same authorities. He
sums up the effect of the books referred to in these words: '-These
authorities fully show that all contracts are to be considered according
to the laws of the country where they are made. And the practice
of civilized countries has been conformable to this doctrine, and, by the
common consent of nations, has been so received." In many instances,
judges have used similar language with reference to cases where the
form and ceremonial of the marriage were alone in question ; and
it can hardly, in such cases, be presumed that they intended their
words to bear a more extensive sense than was necessary for the
question then before them ; but the sense ascribed by Sir E. Simpson
to these passages extends to the clandestine character of the marriage,
and not merely to the form of the contract or ceremonial. He then
explains in the clearest manner the principle on which courts have
proceeded in holding that marriages are to be considered according
to the law of the country in which they are celebrated : " All nations
allow marriage contracts ; they are juris gentium, and the subjects
of all nations are equally concerned in them ; and from the infinite
mischief and confusion which must necessarily arise to the subjects
of all nations with respect to legitimacy, successions, and other rights,
if the respective laws of different countries were only to be observed as
to marriages contracted by the subjects of those countries abroad,
all nations have consented, or must be presumed to consent, for the
common benefit and advantage, that such marriages should be good
or not according to the laws of the country where they are made.
It is of equal consequence to all that one rule in these cases should be
observed by all countries — that is. the law where the contract is made.
Ilv^>bserving 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
<jan be shown that when the law tolerates polygamy .there can be neither
lawful wife nor legitimate children, for here the evidence does not dis-
close any previous marriage.
The validity of the marriage may possibly have been denied upon the
impression that having been contracted within the territorial limits of
the State, it cannot be affected by Choctaw usages or customs, though
both parties were of that tribe and resident within its bounds.
2. The refusal cannot be sustained on this ground. Waiving the
consideration of the peculiar relation which these Indian tribes bear to
the States, within the limits of which they were resident, and assuming
that the individuals composing the tribes could by the States have been
made subject to their general laws, the question yet remains whether,
at the time of this supposed marriage, the laws and usages of the Choc-
taw tribe had been abolished or superseded ; or whether they composed
a distinct community, governed by their own chiefs and laws. It is
not pretended that any statute producing this effect was then passed,
and therefore, if lost at all, their local laws must have been lost in con-
sequence of their living within the territorial limits of the States. It
may be difficult to ascertain the precise period of time when one nation,
or tribe, is swallowed up by another, or ceases to exist ; but until then
there cannot be said to be a merger. It is only by positive enactments,
even in the case of conquered and subdued nations, that their laws arc
changed by the conqueror. The mere acquisition, whether by treaty oi
war, produces no such effect. It may therefore be considered that the
usages and customs of the Choctaw tribe continued as their law, and
80 WALL V. WILLIAMSON. [CHAP. VI.
governed their people, at the time when this marriage was had. The
consequence is, that if valid by those customs it is so recognized by our
law. 1
For that error, in refusing thus to charge, the judgment must be re-
versed and the cause remanded.
3. But although this result is arrived at, it yet remains necessaiy to
ascertain what further instructions ought to have been, or should be,
given. The evidence tended to show that by the Choctaw law the hus-
band takes no part of the wife's property. A necessary consequence
of this peculiarit} - is, that the wife must have the capacity to contract,
for otherwise she would be incapable, in many instances, to preserve
or protect her property. The bill of exceptions is silent as to any posi-
tive law among them, as to this point, but the inference is direct and
immediate, from what was proved. Having, by their law, the capacit}-
to contract, it is also likely that means were provided by it for its en-
forcement ; but if that was the case, we do not see how she could be
sued in a court of law, so long as the marriage continued. It would
present nothing but the case of a wife with a separate estate to her own
use. It may be possible that the objection to the form of action could
not be urged at the trial, but it is unnecessary to consider this point
further, because we are clear that the marriage was dissolved according
to Choctaw usages by the abandonment of the husband.
4. Whatever may have been the capacity of the husband to abandon
his wife, and thereby to dissolve the marriage, if both had become resi-
dents of Alabama after the tribe had departed from its limits, it is very
clear that the same effect must be given to a dissolution of the marriage
by the Choctaw law as given to the marriage by the same law. By that
law it appears the husband may at pleasure dissolve the relation. His
abandonment is evidence that he has done so. We conceive the same
effect must be given to this act as would be given to a lawful decree in
a civilized cormnunity dissolving the marriage. However strange it
may appear, at this da}', that a marriage may thus easily be dissolved,
the Choctaws are scarcely worse than the Romans, who permitted a
husband to dismiss his wife for the most frivolous causes. Story, Conn",
of Laws, 169.
The jury then should have been instructed that notwithstanding the
marriage, if contracted according to Choctaw usage, between members
of the tribe, in their own territory, before their laws were abrogated,
was valid, yet the wife had the capacity to contract, and in case of a
valid contract, was liable to be sued as a feme sole, if the marriage
could, bj- the Choctaw law, be dissolved by the husband at his pleasure,
and was so dissolved, which might be inferred if the husband abandoned
his wife and went with his tribe beyond the Mississippi or elsewhere.
Judgment reversed and remanded.
1 Ace. Kobogum v. Jackson Iron Co., 76 Mich. 498, 43 N. W. 602 ; Earl v. Godley,
42 Minn. 361 ; Johnson v. Johnson, 30 Mo. 72 ; Morgan v. McGhee, 5 Humph. 13;
Connolly v. Woolrich, 11 L. Can. Jur. 197 ; Ngqobela v. Sihele, 10 Juta (Cape Colony),
346. Contra, In re Bethell, 38 Ch. D. 220. — Ed. %
SECT. III.] ROCHE V. WASHINGTON. 81
ROCHE y. WASHINGTON.
Supreme Court of Indiana. 1862.
[Reported 19 Indiana, 53.]
Perkins, J. Suit for partition, instituted by Francis Washington
against John Roche. Partition adjudged. Motion for a new trial
overruled. Commissioners report partition. Report confirmed. New
trial denied. Appeal to this court.
The cause was decided upon the following agreed case :
" It is hereby agreed, by the parties to this action, that the following
are the facts of the case : The land in question, of which partition is
prayed, was the property of La-ka-ko-quah, alias Jane Richardville,
who died seized of the same in 1857, leaving no children, nor father or
mother, but leaving her husband, as hereinafter stated, whose name is
George Washington, and her sister, Catharine Richardville, her brother,
Snap° Richardville, and Francis Washington, the plaintiff, who is an
only son of her sister, Ah-tah-pe-tah-neah, deceased. It is further
agreed, that the defendant, John Roche, has the title of George Wash-
ington, Catharine and Snap Richardville, conveyed to him since the
decease of the said Jane Richardville. It is further agreed, that all of
the foregoing persons, except the defendant, are, or were, Miami Indians.
" It is further agreed, that, in the year 1844, the said George Wash-
ington, according to the manner and custom of marriage in said Miami
tribe of Indians, was duly married to Le-qua, a Miami Indian, with
whom he lived, residing in Huntington County, Indiana, where a part
of the said Miami tribe then and since have resided ; that in the year
1846 the said George Washington and the said Le-qua, according to
the manner and custom of divorce in said Miami tribe, were duly
divorced ; that in the same year, 1846, said Le-qua removed to Kansas
territory, where she has since resided, and now resides ; that after-
ward, in the year 1847, said George Washington, according to the
custom of said tribe of Indians, was married to the said Ah-tah-pe-tah-
neah, who departed this life in 1852, leaving said Francis Washington
her only surviving child ; that afterward, in 1853, said George Wash-
ington, according to the custom of said Indian tribe, was married to
saTd La-ka-ko-quah, alias Jane Richardville, and that the two lived
together, and cohabited as man and wife, till her death, at the county
of Huntington, in 1857, she dying childless.
" It is further agreed, that the Indian custom of marriage requires
no ceremony further than the agreement of the parties to live together
as husband and wife, the agreement being consummated by living and
cohabiting together as such.
" It is further agreed, that the Indian custom of divorce requires no
special form of proceeding, other than that the parties disagree, and,
vol. ii. — 6
32 KOCHE V. WASHINGTON. [CHAP. VI.
bv consent, separate, the mother usually taking care of, and receiving
the annual payment of the Government to, the children ; and that the
said customs of marriage and divorce are the ancient, immemorially
continued, and present existing customs among all of said tribe of In-
dians, and the law thereof ; and that the same have continued to exist,
as their customs and laws, from a period beyond the memory of man."
The question intended to be presented for our decision in this cause
is, whether the courts of Indiana will hold valid, as marriages, such
unions, and as divorces, such separations, as those described in the
agreed statement of facts, they having been made under, and being
sanctioned by, the laws of the Miami tribe of Indians.
It is claimed that, by the law of nations, the courts of Indiana must
uphold Indian marriages. The law of nations, or international law, is
mainly of modern origin, growing out of increased commercial and
social intercourse, and exists only among civilized States. 1 Kent, p. 1.
It is very properly divided by late writers into public and private.
Public, that which regulates the political intercourse of nations with
each other. Private, that which regulates the comity of States in giving
effect, in one, to the municipal laws of another, relating to private per-
sons, their contracts, etc.
The first question to be decided is, then, Does a tribe of North
American Indians constitute a State ? We think not. A State has been
defined to be "a people permanently occupying a fixed territory, bound
together by common laws, habits, and customs [or by a constitution],
into one body politic, exercising, through the medium of an organized
government, independent sovereignty and control over all persons and
things within its boundaries, capable of making war and peace, and of
entering: into international relations with other communities." See New
Am. Cyclop, vol. x., p. 360 ; Wheat. L. of Nations, pp. 53, 54 ;
1 Kent, 188, 189. But few of the particulars enumerated as constitut-
ing a State, exist in a tribe of North American Indians. See, however,
The Cherokee Nation v. Georgia, 5 Pet. (U. S.) Rep. 1. This the
court judicially takes notice of as matter of general historical knowl-
edge ; the Indians are not educated above the condition of nomadic,
pastoral tribes, if up to it. Neither, were these tribes conceded to be
States or nations, in the political or international sense of the terms,
are they civilized.
Civilization, it is true, is a term which covers several states of society ;
it is relative, and has not a fixed sense ; but, in all its applications, it
is limited to a state of society above that existing among the Indians
of whom we are speaking. It implies an improved and progressive
condition of the people, living under an organized government, with
systematized labor, individual ownership of the soil, individual accumu-
lations of property, humane and somewhat cultivated manners and
customs, the institution of the family, with well-defined and respected
domestic and social relations, institutions of learning, intellectual
activity, etc. We know, historically, that the North American Indians
SECT. III.] ROCHE V. WASHINGTON. 83
are classed as savage and not as civilized people ; and that, in fact, it
is problematical whether they are susceptible of civilization.
But, let it be admitted that the Miami tribe of Indians constitutes an
international political State, and that it is a civilized one, still the Slate
of Indiana is not bound by international comity to give effect, in her
courts, to all the laws and customs of such State, but only to such as
are not repugnant to her own laws and policy. 1 Ind. 24.
Laws giving effect to contracts of marriage are not repugnant to the
laws of Indiana, and the proposition is established, as a general one,
in private international law, that an actual marriage, valid in the country
where celebrated, will, not as upon a claim of right, but by courtesy,
be given effect to in other States, though not celebrated by the forms
nor evidenced in the mode prescribed for marriages in such other States.
If, then, in the case at bar, an actual marriage took place between Jane
Richardville and George Washington, there could be no objection to its
being upheld in the courts of this State, though celebrated among an
uncivilized tribe of Indians.
What, then, constitutes the thing called a marriage ? what is it in the
eye of the jus gentium? It is the union of one man and one woman,
" so long as the}- both shall live," to the exclusion of all others, by an
obligation which, during that time, the parties cannot, of their own
volition and act, dissolve, but which can be dissolved only by authority
of the State. Nothing short of this is a marriage. And nothing short
of this is meant, when it is said, that marriages, valid where made, will
be upheld in other States. Noel v. Ewing, 9 Ind. 37 ; Story's Con-
flict of Laws, chap. v. ; Wheaton's Law of Nations, 137. See Reynolds
r. Reynolds, 3 Allen (Mass.) Rep. 605. From what has been said, it is
manifest that the union between Jane and George, described in the
statement of facts in the case at bar, was not a marriage, according to
the law of any civilized nation, but simply and exactly a contract and
state of concubinage. See Cobb on Slavery, 245, note 4; The State
v. Samuel, 2 Dev. and Bat. (N. C.) Rep. 177. But, suppose the union
had been such as to constitute marriage, according to the jus gentium,
and which the courts of this State would have upheld as such, it might
not still have followed, as a consequence, that the husband would have
inherited, from the wife, her real estate. The; marriage is one thing,
and the incidents, the legal rights, and consequences attaching upon
marriage, are another; and these may be different as to real and per-
sonal property. 2 Kent, p. 93 et seq. Marriage, in different countries
is followed by different property rights. In the Miami nation, or tribe
of Indians, marriage, supposing we concede their unions of sexes to be
such, is not followed by a right in either party, by the law of the tribe,
to inherit real estate from the other; for the Indians, by their laws,
neither in their tribal capacity, nor individually, owned any real estate.
It is a kind of property unknown to them. They simply hold vaguely
defined territory, for' use in hunting, fishing, etc., and they never
assumed to, and could not convey, the fee, to any one. That belonged,
34 ROCHE V. WASHINGTON. [CHAP. VI.
first, to Great Britain, as the discovering nation, and to the United
States afterward, by succession to Great Britain ; and it is under out-
laws only that any individual among these Indians ever obtained, con-
veyed, or inherited real estate. See Fellows v. Denniston, 23 N. Y.
Rep. 420 ; The Cherokee Nation v. Georgia, 5 Pet. (IT. S.) Rep. 1.
This is the doctrine of international law held by civilized States, and
acted upon without consulting the Indians. It is based or justified on
the ground that the Indians never cultivated the soil. But the case
does not turn on any of the foregoing points, and they need not, there-
fore, be regarded as decided. See, on the general subject, Dale v. Irish,
2 Barb. 639 ; Wall v. Williamson, 8 Ala. 48 ; 11 Ala. 826, and 10 Ala.
630. Also, Jones v. Laney, 2 Texas, 342, and the cases in the Supreme
Court of the United States, cited in Cush. Dig. 240.
A treaty, however, we may remark, may be made between a govern-
ment and an association of persons not constituting an independent
government. The Constitution of the United States authorizes our
government to treat with foreign nations, and to regulate affairs with
States and Indian tribes. We know, as a part of the law of the land,
and the history of our State, that the last treaty between the Miami
tribe of Indians, located in Indiana, and the United States, was in 1840 ;
that the tribe then agreed to remove from Indiana to west of the
Mississippi river ; that, in 1846, the agreement was executed, the chiefs
at that time extinguishing their council fires upon the Wabash, and,
accompanied by most of the living members of their tribe, departing
for their newly assigned and distant home. The sovereignty of the tribe,
so far as it possessed sovereignty, its jurisdictional power, so far as it
possessed such over persons and property in Indiana, disappeared with
the light of its council fires, and departed to the new seat of the tribe.
Now, it is true as a general proposition, that the laws of a nation are
operative only within the limits of the territory over which the jurisdic-
tion of the nation extends. They do not, as a general proposition,
follow the individuals of such nation into the jurisdictional limits of
another nation, so as to attach to acts done in such other nation.
Hence, if citizens of Great Britain, of China, or of Africa, contract
marriage in Indiana, that contract, to be valid, must conform to the
laws of Indiana. 1 Bright's Husband and Wife, p. 8 ; 1 Greenleaf s
Ev., § 545. For exceptions to the general proposition above stated,
see Wheaton's Law of Nations, p. 132, third edition. The marriage,
m the case at bar, was contracted in Indiana, between Miami Indians
who did not accompany the tribe to the West, but remained to live
among our people ; and it was contracted after all territorial jurisdiction
of the tribe had ceased in the State, and after the tribe itself, with its
government, had disappeared from our borders. The marriage, there-
fore, was clearly to be tested by the law of Indiana ; certainly so when
it came in question in our own tribunals.
The judgment below is affirmed, with costs.
SECT. III.] COMMONWEALTH V. LANE. 85
COMMONWEALTH v. LANE.
Supreme Judicial Court of Massachusetts. 1873.
[Reported 113 Massachusetts, 458.]
Indictment on the Gen. Sts. c. 165, § 4, for polygamy. 1
Gray, C. J. The report finds that the defendant was lawfully mar-
ried to his first wife in this Commonwealth ; that she obtained a divorce
here from the bond of matrimony, for his adultery ; that he was after-
wards, while still a resident of this Commonwealth, married to a second
wife in the State of New Hampshire, and cohabited with her in this
Commonwealth, the first wife being still alive ; and the question is
whether he is indictable for polygamy, under the Gen. Sts. c. 165, § 4.
It is provided by our statutes of divorce that, in cases of divorce from
the bond of matrimony, the innocent party may marry again as if the
other party were dead ; but that any marriage contracted by the guilty
party during the life of the other, without having obtained leave from this
court to marry again, shall be void, and such party shall be adjudged
guilty of polygamy. Gen. Sts. c. 107, §§ 25. 26; St. 1864, c. 216.
The marriage act, Gen. Sts. c. 106, specifies, in §§ 1-3, what mar-
riages shall be void by reason of consanguinity or affinity ; in § 4, that
all marriages contracted while either of the parties has a former wife or
husband living, except as provided in c. 107, shall be void ; in § 5, that
no insane person or idiot shall be capable of contracting marriage ; and
in § 6 as follows: " When persons resident in this State, in order to
evade the preceding provisions, and with an intention of returning to
reside in this State, go into another State or country, and there have
their marriage solemnized, and afterwards return and reside here, the
marriage shall be deemed void in this State."
All these sections, except the last, are manifestly directed and
limited to marriages within the jurisdiction of this Commonwealth ; and
the last has no application to this case, because it does not appear to
have been proved or suggested at the trial that the parties to the
second marriage went out of this State to evade our laws, or even that
the second wife had resided in this State or knew of the previous mar-
riage and divorce.
By the Gen. Sts. c. 165, § 4, " whoever, having a former husband or
wife living, marries another person, or continues to cohabit with such
second husband or wife in this State," shall (except when the first
husband or wife has for seven years been absent and not known to the
other party to be living, or in case of a person legally divorced from
the bonds of matrimony and not the guilty cause of such divorce i lu-
deemed guilty of polygamy and punished accordingly.
This statute is not intended to make any marriages unlawful which
1 Statement of facts ami arguments of counsel arc omitted. — V.n.
86 COMMONWEALTH V. LANE. [CHAP. VL
are not declared to be unlawful by other statutes, nor to punish co-
habitation under a lawful marriage. Its object is to prohibit unlawful
second marriages, whether the parties are actually married in this
Commonwealth, or continue after being married elsewhere to cohabit
here. But in either alternative, in order to sustain the indictment, the
second marriage must be unlawful. It is not enough that the marriage
is such as would be unlawful if contracted in this Commonwealth ; it must
be a marriage which, being contracted where it was, is unlawful here.
The marriage in New Hampshire is stated in the report to have
been " according to the forms of law ; " and it appears by the statutes
of New Hampshire, therein referred to, that the only provision relating
to the invalidity of marriages on account of the incompetency of parties
to contract them is as follows : " All marriages prohibited b} r law, on
account of the consanguinity or affinity of the parties, or where either
has a former wife or husband living, knowing such wife or husband to
be alive, if solemnized in this State, shall be absolutely void without
an}' deci'ee of divorce or other legal process." Gen. Sts. of N. H.
(1867), c. 1G3, § 1. That provision clearly does not extend to a case
in which the former wife, having obtained a divorce from the bond of
matrimony, was absolutely freed from, all obligation to the husband,
and in which, as observed by Mr. Justice Wilde, in a like case, " not-
withstanding the restraints imposed on the husband, he being the guilty
cause of the divorce, the dissolution of the marriage contract was total,
and not partial." Commonwealth v. Putnam, 1 Pick. 136, 139. The
marriage in New Hampshire must therefore be taken to have been
valid by the law of that State.
The question presented by the report is therefore reduced to this : If
a man who has been lawfully married in this Commonwealth, and
whose wife has obtained a divorce a vinculo here because of his
adultery, so that he is prohibited by our statutes from marrying again
without leave of this court, is married, without having obtained leave
of the court, and being still a resident of this Commonwealth, to
another woman in another State, according to its laws, and afterwards
cohabits with her in this Commonwealth, is his second marriage valid
here ?
The determination of this question depends primarily upon the con-
struction of our statutes, but ultimately upon fundamental principles
of jurisprudence, which have been clearly declared by the judgments of
our predecessors in this court, and in the light of which those statutes
must be read in order to ascertain their just extent and effect.
What marriages between our own citizens shall be recognized as
valid in this Commonwealth is a subject within the power of the legis-
lature to regulate. But when the statutes are silent, questions of the
validity of marriages are to be determined by the jus gentium, the
common law of nations, the law of nature as generally recognized by
all civilized peoples.
B}' that law, the validity of a marriage depends upon the question ■
SECT. III.] COMMONWEALTH V. LANE. 87
whether it was valid where it was contracted ; if valid there, it is valid
everywhere.
The only exceptions admitted by our law to that general rule are of
two classes: 1st. Marriages which are deemed contrary to the law of
nature as generally recognized in Christian countries ; 2d. Marriages
which the legislature of the Commonwealth has declared shall not be
allowed any validity, because contrary to the policy of our own laws.
The first class includes only those void for polygamy or for incest.
To bring it within the exception on account of polygamy, one of the
parties must have another husband or wife living. To bring it within
the exception on the ground of incest, there must be such a relation
between the parties contracting as to make the marriage incestuous
according to the general opinion of Christendom ; and, b}- that test,
the prohibited degrees include, beside persons in the direct line of
consanguinity, brothers and sisters only, and no other collateral kin-
dred. Wightman v. Wigbtman, 4 Johns. Ch. 343, 349-351 ; 2 Kent
Com. 83 ; Story, Confl. § 114 ; Sutton v. Warren, 10 Met. 451 ; Steven-
son v. Gray, 17 B. Mon. 193 ; Bowers v. Bowers, 10 Rich. Eq. 551.
A marriage abroad between persons more remotely related, not
absolutely void by the law of the country where it was celebrated, is
valid here, at least until avoided by a suit instituted for the purpose,
even if it might have been, so avoided in that country ; and this is so
whether the relationship between the parties is one which would not
make the marriage void if contracted in this Commonwealth, as in the
case of a marriage between a widower and his deceased wife's sister,
or one which would invalidate a marriage contracted here, as in the
case of a marriage between aunt and nephew.
In Greenwood v. Curtis, G Mass. 358, 378, 379, Chief Justice Par-
sons said : "If a foreign State allows of marriages incestuous by the
law of nature, as between parent and child, such marriage could not be
allowed to have any validity here. But marriages not naturally unlaw-
ful, but prohibited by the law of one State, and not of another, if cele-
brated where they are not prohibited, would be holden valid in a State
where they are not allowed. As in this State a marriage between a
man and his deceased wife's sister is lawful, but it is not so in some
States; such a marriage celebrated here would be held valid in any
other State, and the parties entitled to the benefits of the matrimonial
contract." This distinction was approved by Chancellor Kent and by
Judge Story. 2 Kent Com. 85, note a ; Story, Confl. § 116.
Tn The Queen v. Wye, 7 A. & E. 761, 771; s. c. 3 N. & P. 6, 13,
14 ; it was decided that the marriage of a man with his mother's sister
in England before the St. of 5 & 6 Will. [V. c. 51. though voidable by
process in the ecclesiastical courts, was. until so avoided, valid for all
civil purposes, including legitimacy and settlement. In accordance
with that decision, it was held in Sutton v. Warren, 10 Met. 451. that
such a marriage contracted in England, and never avoided there, must,
upon the subsequent removal of the parties to Massachusetts, and the
88 COMMONWEALTH V. LANE. [CHAP. VL
question arising collaterally in an action at common law, be deemed
valid here, although, if contracted in this Commonwealth, it would
have been absolutely void.
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.
For example, while the statutes of Massachusetts prohibited mar-
riages- between white persons and negroes or mulattoes, a mulatto and
a white woman, inhabitants of Massachusetts, went into Rhode Island,
and were there married according to its laws, and immediately returned
into Massachusetts ; and it was ruled by Mr. Justice Wilde at the trial,
and affirmed by the whole court, that the marriage, even if the parties
went into Rhode Island to evade our laws, yet, being good and valid
there, must upon general principles be so considered here, and that the
wife therefore took the settlement of her husband in this Common-
wealth. Med way v. Needham, 16 Mass. 157.
So it has been held that a man, from whom his wife had obtained in
this State a divorce a vinculo for his adultery, which by our statutes
disabled him from contracting another marriage, might lawfully marry
again in another State according to its laws; that the children of such
marriage took the settlement of their father in this Commonwealth ;
and that the new wife was entitled to dower in his lands here, even if
the wife as well as the husband was domiciled here, and knew of the
previous divorce and its cause, and went into the other State to evade
our laws — so long as our statutes did not declare a marriage con-
tracted there with such intent to be void here. West Cambridge v.
Lexington, 1 Pick. 506 ; Putnam v. Putnam, 8 Pick. 433. See also
Dickson v. Dickson, 1 Yerger, 110; Ponsford v. Johnson, 2 Blatchf.
C. C. 51 ; 2 Kent Com. 91-93.
The principles upon which these decisions proceeded were recognized
in all the English cases decided before the American Revolution,
although it is true, as has since been pointed out, that the particular
question in each of them related rather to the forms required than to
the capacity of the parties.
Lord Hardwicke's Marriage Act in 1752 provided that all marriages
of minors, solemnized by license without the consent of parents or
guardians, should be void. St. 26 Geo. II. c. 33, § 11. Yet in the
first case which arose under that act, in which an English boy of eight-
een 3-ears old went abroad with an English woman, and was there
married to her without such consent, Lord Hardwicke, sitting as chan-
cellor, assumed that if the marriage had been valid by the law of the
country in which it was celebrated, it would have been valid in Eng-
land, saying: " It will not be valid here unless it is so b}' the laws of
SECT. III.] COMMONWEALTH V. LANE. 89
the country where it was had ; and so it was said by Murray, attorney-
general, to have been determined lately at the Delegates." And it
would seem by the report that the woman defeated an application to
the Ecclesiastical Court to annul the marriage, by refusing to appear
there. Butler v. Freeman, Ambl. 301.
The case, thus referred to as determined at the Delegates, was evi-
dently Scrimshire v. Scrimshire, decided by Sir Edward Simpson in the
Consistory Court in 1752. Of that opinion, Sir George Hay, in Har-
ford v. Morris, 2 Hagg. Con. 423, 431, said, " Every man has allowed
the great and extensive knowledge of the judge ; " and Sir William
Wynne, in Middleton v. Janverin, 2 Hagg. Con. 437, 446, remarked
that he remembered to have heard that the judgment was founded on
great deliberation, and that Lord Hardwicke was consulted on it.
In Scrimshire v. Scrimshire, Sir Edward Simpson, in delivering
judgment, said : " The question being in substance this, Whether, by
the law of this country, marriage contracts are not to be deemed good
or bad according to the law of the country in which they are formed;
and whether they are not to be construed by that law? If such be the
law of this country, the rights of English subjects cannot be said to be
determined by the laws of France, but by those of their own country,
which sanction and adopt this rule of decision." " All nations allow
marriage contracts; they are juris gentium, and the subjects of all
nations are equally concerned in them ; and from the infinite mischief
and confusion that must necessarily arise to the subjects of all nations,
with respect to legitimacy, successions, and other rights, if the respec-
tive laws of different countries were only to be observed, as to mar-
riages contracted by the subjects of those countries abroad, all nations
have consented, or must be presumed to consent, for the common
benefit and advantage, that such marriages should be good or not,
according to the laws of the country where they are made. It is of
equal consequence to all, that one rule in these cases should be
observed by all countries, — that is, the law where the contract is
made." And he declared the marriage in that case to be invalid, only
because it appeared to be wholly null and void by the laws of France,
where it was celebrated. 2 Hagg. Con. 395, 407, 408, 417, 421.
In Compton v. Bearcroft (1767-69), where the parties, both being
English subjects and the libellant a minor, ran away and were married
in Scotland, a libel for the nullity of the marriage was dismissed by
Sir George Hay in the Court of Arches, upon the ground that Lord
Ilardwicke's Act did not extend to Scotland; but by the Court of
Delegates on appeal, consisting of Justices Gould and Aston, Baron
Perrott, and two doctors of civil law, upon the broader ground that
the marriage was good by the lex loci. 2 Hagg. Con. 430, 443, 444,
and note; s. a Bui. N. P. 113, 114. See also Ilderton v. Elderton, 2
II. I'.l, 145; Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 59; Ruding v.
Smith', ib. 371, 390, 391 ; Steele v. Braddell, Milward, 1. 21.
In a recent case in the Douse of Lords, the cases of Medway v
90 COMMONWEALTH V. LANE. [CHAP. VI.
Needhaiu, 16 Mass. 157, and Sutton v. Warren, 10 Met. 451, above
cited, have been severely criticised, and pointedly denied to be law.
Brook v. Brook, 9 H. L. Cas. 193 ; s. c. 3 Sm. &*Giff. 481. As that
court is the one of all foreign tribunals, the opinions of which, owing
to the learning, experience, and ability of the judges, we are accustomed
to regard with the most respect, it becomes necessary to examine with
care the scope of that decision, and the soundness of the reasons
assigned for it ; and in order to make this examination intelligible, it
will be convenient first to refer to the English statutes and to some
earlier decisions.
Several statutes of Henry VII L, which it is necessary to state in
detail, declared marriages within certain degrees of consanguinity and
affinity, and among others the marriage of a widower with his deceased
wife's sister, to be " contrary to God's law as limited and declared bj r
act of Parliament." Sts. 25 Hen. VIII. c. 22 ; 28 Hen. VIII. cc. 7,
16 ; 32 Hen. VIII. c. 38. While those statutes remained unaltered, a
period of nearly three hundred years, such marriages were held b\- the
judges not to be absolutely void, but voidable only by suit in the
ecclesiastical courts during the lifetime of both parties, and, if not so
avoided, were treated as valid, the wife entitled to dower, and the
children of the marriage legitimate. Co. Lit. 33; Hinks v. Harris, 4
Mod. 182 ; s. c. 12 Mod. 35 ; Carth. 271 ; 2 Salk. 548. Lord Hard-
wicke, in Brownsword v. Edwards, 2 Ves. Sen. 243, 245; 1 Bl. Com.
434, 435 ; Elliott v. Gurr, 2 Phillim. 16; The Queen v. Wye, 7 A. &
E. 761, 771 ; s. c. 3 N. & P. 6, 13, 14; Westby v. Westby, 2 Dru.
& War. 502, 515, 516; s. c. 1 Con. & Laws. 537, 544, 545; 4 Irish
Eq. 585, 593.
The St. of 5 & 6 Will. IV. c. 54, commonly known as Lord Lynd-
hurst's Act, provided, as to marriages between persons within the
prohibited degrees of affinity, as follows : 1st, that such marriages,
celebrated before the passage of the act, should not be annulled,
except in a suit already pending in the ecclesiastical courts ; 2d, that
such marriages, thereafter celebrated, should be absolutely null and
void to all intents and purposes whatever ; 3d, that nothing in this act
should be construed to extend to Scotland.
The marriage of a widower with the sister of his deceased wife, in
England, after this statute, was held to be within the prohibited
degrees and utterly void. The Queen v. Chad wick, 11 Q. B. 173, 234.
A case afterwards came before the Scotch courts, in which an Eng-
lish citizen married his deceased wife's sister in England ; the validity
of the marriage was not disputed during her life, and she died before
the St. of Will. IV. ; and the question was, whether the children of
the marriage could inherit his lands in Scotland. The Scotch courts,
in a series of very able opinions, held that they could, upon the ground
that by the law of England, the marriage, not having been challenged
in the lifetime of both parties, could not in an}' form be declared invalid
in England, and the children were h-gitimate there, and must therefore
SECT. III.] COMMONWEALTH V. LANE. 91
be deemed legitimate in Scotland. Fenton v. Livingstone, 16 Ct. of
Sess. Cas. (2d Series) 104, and 18 ib. 865. The House of Lords, on
appeal, reversed that decision, and held that, although the marriage
had, by reason of the peculiar rules governing the English courts of
temporal and ecclesiastical jurisdiction, become irrevocable there, yet
it was always illegal; and that, those rules not being applicable in the
Scotch courts, the legitimacy of the children in Scotland depended
upon the question whether the marriage was illegal by the law of
Scotland, s. c. 3 Macq. 497. The Scotch court thereupon decided
that the marriage was illegal, and that the children were incapable of
inheriting lands in Scotland, s. c. 23 Ct. of Sess. Cas. (2d Series)
366.
In Brook v. Brook, ubi supra, a widower and the sister of his
deceased wife, being lawfully domiciled in England, while on a tem-
porary visit to Denmark, had a marriage solemnized between them,
which was by the laws of Denmark lawful and valid to all intents and
purposes whatsoever. In a suit in equity, brought after the death of
both parties, to ascertain the rights of the children in their father's
property, the House of Lords, in accordance with the opinions of
Lords Campbell, Cranworth, St. Leonards, and Wensleydale, and
affirming a decree rendered by Vice Chancellor Stuart, assisted by Mr.
Justice Cresswell, held that the marriage in Denmark was wholly void
by the St. of Will. IV., and that the children of that marriage were
bastards.
The decision was put, by the learned judges who concurred in it,
upon three different grounds.
The first ground was that the St. of Will. IV. disqualified English
subjects everywhere from contracting such a marriage. This ground
was taken in the court below, and by Lord St. Leonards in the House
of Lords. 3 Sm. & Giff. 522, 525 ; 9 H. L. Cas. 234-238. But it
was expressly disclaimed by Lord Campbell, Lord Cranworth, and
Lord Wensleydale, the two former of whom expressed opinions that
the statute did not extend to all the colonies, and all three declared
that they did not think its purpose was to put an end to such mar-
riages by British subjects throughout the world. 9 H. L. Cas. 214,
222, 240.
The second ground, which was suggested by Mr. Justice Cresswell
and Lord Wensleydale only, and is opposed to all the American
authorities, was that the case justly fell within the first exception,
stated in Story, Conn. § 114, of marriages involving polygamy and
incest. 3 Sm. & Giff, 513 ; 9 H. L. Cas. 241, 245. In view of that
position, it may be observed that in an earlier case, in which Lord
Wensleydale himself (then Baron Parke) delivered the opinion, a, mar-
riage of a widower with his deceased wife's sister, before the St. <»!'
Will. IV., was prevented from being made irrevocable by that statute,
only by the institution, a week before its passage, of a suit for nullityin
the Ecclesiastical Courl by die father of the supposed wife; and by the
92 COMMONWEALTH V. LANE. [CHAP. VI.
decision of the Privy Council, that because, if the marriage was not set
aside, the birth of a child of the marriage would impose a legal obliga-
tion upon the grandfather to maintain the child in the event of its
being poor, lame, or impotent, and unable to work, he had, according
to the rules of the ecclesiastical courts, a sufficient interest, " although
of an extremely minute and contingent character," to support such a
suit. Sherwood v. Ray, 1 Moore P. C. 353, 401, 402.
The third ground, upon which alone all the law lords agreed, was
that the St. of Will. IV. made all future marriages of this kind between
English subjects, having their domicil in England, absolutely void,
because declared by act of Parliament to be contrary to the law of
God, and must therefore be deemed to include such marriages, although
solemnized out of the British dominions.
The law of England, as thus declared by its highest legislative and
judicial authorities, is certainly presented in a remarkable aspect. 1st.
Before the St. of Will. IV., marriages within the prohibited degrees
of affinity, if not avoided by a direct suit for the purpose during the
lifetime of both parties, had the same effect in England, in every
respect, as if wholly valid. 2d. This statute itself made such mar-
riages, already solemnized in England, irrevocably valid there, if no
suit to annul them was already pending. 3d. It left such marriages in
England, even before the statute, to be declared illegal in the Scotch
courts, at least so far as rights in real estate in Scotland were con-
cerned. 4th. According to the opinion of the majority of the law lords,
it did not invalidate marriages of English subjects in English colonies,
in which a different law of marriage prevailed, oth. But it did make
future marriages of this kind, contracted either in England or in a
foreign country, by English subjects domiciled in England, absolutely
void, because declared by the British Parliament to be contrary to the
law of God.
The judgment proceeds upon the ground that an act of Parliament
is not merely an ordinance of man, but a conclusive declaration of the
law of God ; and the result is that the law of God, as declared by act
of Parliament and expounded by the House of Lords, varies according
to time, place, length of life of parties, pecuniary interests of third
persons, petitions to human tribunals, and technical rules of statutory
construction and judicial procedure.
The case recalls the saying of Lord Holt, in London v. Wood, 12
Mod. 669, 687, 688, that "an act of Parliament can do no wrong,
though it may do several things that look pretty odd ; " and illustrates
the effect of narrow views of policy, of the doctrine of "the omnipo-
tence of Parliament," and of the consequent unfamiliarity with ques-
tions of general jurisprudence, upon judges of the greatest vigor of
mind, and of the profoundest learning in the municipal law and in the
forms and usages of the judicial system of their own country.
Such a decision, upon such reasons, from any tribunal, however
eminent, can have no weight in inducing a court, not bound by it as
authority, to overrule or disregard its own decisions.
SECT. III.] KINNEY V. COMMONWEALTH. 93
The provision of the Gen. Sts. c. 107, § 25, forbidding the guilty
party to a divorce to contract another marriage, during the life of the
other party, without leave of this court, on pain of being adjudged
guilty of polygamy, does not create a permanent incapacity, like one
arising from consanguinity or affinity. It is rather in the nature of the
imposition of a penalty, to which it would be difficult to give any extra-
territorial operation. West Cambridge v. Lexington, 1 Pick. 506, 510,
51*2 ; Clark v. Clark, 8 Cush. 385, 38G. Upon the principles and
authorities stated in the earlier part of this opinion, it certainly can-
not invalidate a subsequent marriage in another State according to its
laws, at least without proof that the parties went into that State and
were married there with the intent to evade the provisions of the
statutes of this Commonwealth. No such intent being shown in this
case, we need not consider its effect, if proved, nor whether the indict-
ment is in due form. See Commonwealth v. Putnam, 1 Pick. 136,
139 ; Commonwealth v. Hunt, 4 Cush. 49.
New trial ordered.' 1
KINNEY v. COMMONWEALTH.
Court of Appeals of Virginia. 1878.
[Reported 30 Grattan, 858.]
Christian, J." The plaintiff in error was indicted in the county court
of Augusta County for lewdly associating and cohabiting with Mahala
Miller. He was found guilty. . . . The Commonwealth, to sustain the
issue on her part, proved to the jury that the defendant, Andrew
Kinney, and a certain Mahala Miller, on the 1st day of January, 1*77.
and from that time to the 27th day of August, 1877, in the county of
Augusta and State of Virginia, did live and associate together as man
and wife ; that said Andrew Kinney is a negro, and said Mahala Miller
a white woman, and that in November, 1874, they, as citizens of the
State of Virginia, regularly domiciled in the county of Augusta, left
their own State for the purpose of being married in the District of
Columbia, and in ten days thereafter returned to this State to live, and
have since lived together as man and wife in said county of Augusta.
The defendant, to sustain the issue on his part, proved that he and the
said Mahala Miller were married in the District of Columbia on the 4th
day of November, 1874, in accordance with the laws of said district.
1 Ace. Scott v. A. G., li 1'. I). 128; Pondsfonl v. JohnBon, 2 Blatchf. 51 ; Phillips v.
Madrid, 83 Me. 205, 22 Atl. 114 ; Van Voorhis v. Print nail, 86 X. Y. is ; S. v. Shattuck,
69 Vt. 403, 38 Atl. 81. Contra, Williams v. Oatea, S [re. L. 535 ; Stall's Estate, 183
Pa. 625,39 Atl. 16 (but sec Van Storch v. Griffin, 71 Pa. 240, not cited in the later
case) ; Pennegar v. S., 87 Tenn. 244. And see Succession of Hernandez, 46 La. Aim.
962, 15 So. 461. — Ed.
a Part of the opinion is omitted. — Ed.
94 KINNEY V. COMMONWEALTH. [CHAP. VI.
The court . . . instructed the jury as follows: "That the said mar-
riage of the defendant and said Mahala Miller was, under the circum-
stances proven, but a vain and futile attempt to evade the laws of
Virginia, and override her well-known public policy, and is therefore
no bar to this prosecution ; to which opinion ... the defendant, by
his counsel, excepts." . . .
The sole question submitted by this bill of exceptions for the adjudi-
cation of this court is, Whether the alleged marriage celebrated in the
District of Columbia, " in accordance with the laws of said district,"
as certified in the certificate of facts, is a bar to this prosecution ? It
is conceded that a marriage in this State between a white person and a
negro is void. It is not only prohibited by the statute law, but pen-
alties are imposed for its violation. The first section of chapter 105,
Code 1873, provides that " all marriages between a white person and
a negro, and all marriages which are prohibited by law on account of
either of the parties having a former wife or husband then living, shall
be absolutely void without any decree of divorce or other legal process."
In the same section other marriages prohibited by law therein men-
tioned, are voidable only ; that is, declared to be void only from the
time they shall be so declared by decree of divorce or nullity. These
are cases of marriages within the prohibited degrees of consanguinity
or affinity, or where either party was insane or incapable from physical
causes. Such marriages are void when declared to be void by decree
of divorce or nullity, or when the parties are convicted under the third
section of chapter 192, which denounces certain penalties against mar-
riages of parties within the prescribed degrees of consanguinity or
affinity. But marriage between a white person and a negro is declared
by statute to be absolutely void without any decree of divorce or other
legal process. If, therefore, the marriage had been celebrated in this
State between Andrew Kinney, who is a negro, and Mahala Miller,
who is a white woman, no matter by what ceremonies or solemnities,
such marriage would have been the merest nullity, and the parties must
have been regarded, under our laws, as lewdly associating and cohabit-
ing together, and obnoxious to the penalties denounced by our statute
against this gross offence.
Does the marriage of the parties in the District of Columbia, where
marriages between white persons and negroes are not prohibited, present
a bar to this prosecution and put the parties on any different footing
when arraigned before our tribunals for a violation of the laws of this
State? It is admitted that Andrew Kinney and Mahala Miller had
their domicil in Augusta County, in this State; that they remained out
of the State only ten days after their marriage, and returned here, and
that this county is still their domicil.
It is plain to be gathered from the whole record, if not indeed
admitted, that these parties, knowing they could enter into no valid
marriage contract in this State, went to the city of Washington for
the purpose of evading the statute law of this State ; were there
SECT. III.] KINNEY V. COMMONWEALTH. 95
married, and in a few days returned to this State. The}' never changed
nor designed to change their domicil. It was here then ; it is here
now.
The important question, and one of first impression in this State, is :
Does the marriage in the District of Columbia, made infraudem legis
of this State, protect the parties in a prosecution in this State for a
violation of its penal laws in this most important and vital branch
of criminal jurisprudence, affecting the moral well-being and social
order of this State? Must the lex loci contractus or the lex, domicilii
prevail ?
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 may
marry, how they may marry, and what shall be the legal consequences
of their marrying. The right to regulate the institution of marriage ;
to classify the parties and persons who may lawfully marry ; to dissolve
the relation by divorce ; and to impose such restraints upon the relation
as the laws of God, and the laws of propriety, morality, and social
order demand, has been exercised by all civilized governments in all
ages of the world.
It is insisted, however, by the learned counsel for the plaintiff in
error, in the ingenious and able argument which he addressed to this
court, that conceding the power of every State and country to pass
such laws, yet they never act extraterritorial, but must be confined,
with rare exceptions, to such marriages as are contracted and consum-
mated within the State where they are prohibited. He invokes for his
client in this case the rule laid down by jurists and text-writers, that
" a marriage valid where celebrated is good everywhere."
This is undoubtedly the general rule. But there are certain excep-
tions to this general rule, and while in its application and the affirm-
ance of certain exceptions thereto, there was for a long time much
confusion in the authorities and conflict in the cases, I think it may
now be affirmed that there are exceptions to this general rule as well
established and authoritatively settled as the rule itself. 1 . . .
Whatever conflict of authority there may have been on this subject,
it may now be affirmed, since the decision of Brook v. Brook, 9 H. L.
C. 193, that in England, a marriage prohibited by law in that country,
between parties domiciled there, and declared by act of Parliament to
be absolutely void, is invalid there no matter where celebrated. In
this country the same doctrine is affirmed in North Carolina, Louisiana,
and Tennessee. See Williams v. Oates' ex'or, 5 Ired. R. 535; State
v. Kennedy, 76 North Car. 251 ; State v. Ross, 70 North Car. 242;
10 La. Ann. 411, Dupre v. Boulad's ex'or.
Whenever the question has arisen in the Southern States, it has been
held that a marriage between a white person and a negro, although
the marriage be celebrated in a State where such marriages are not
i The court here cited Story, Conflict of Laws § 1 13 v Brook v. Brook, 9 II. L. C.
193. — Ed.
96 KINNEY V. COMMONWEALTH. [CHAP. VI.
prohibited, is void in the State of the domicil, and when they go to
another State temporarily, and for the purpose of evading the law, and
return to their doinicil, such marriage is no bar to a criminal prosecu-
tion. And such is the law of this State. It is now so declared by
statute. See Sess. Acts of 1877-8. The statute, however, was passed
after the marriage of the parties in this case. But without such statute,
the marriage was a nullity. It was a marriage prohibited and declared
11 absolutely void." It was contrary to the declared public law,
founded upon motives of public policy, —a public policy affirmed for
more than a century ; and one upon which social order, public morality,
and the best interests of both races depend. This unmistakable policy
of the legislature, founded, I think, on wisdom and the moral develop-
ment of both races, has been shown by not only declaring marriage
between whites and negroes absolutely void, but by prohibiting and
punishing such unnatural alliances with severe penalties. The laws
enacted to further and uphold this declared policy would be futile and
a dead letter if in fraud of these salutary enactments, both races might,
by stepping across an imaginary line, bid defiance to the law, b}'
immediately returning and insisting that the marriage celebrated in
another State or country should be recognized as lawful, though
denounced by the public law of the domicil as unlawful and absolutely
void. No State will permit its citizens to violate its laws by such
evasions. But the law of the domicil will govern in such case, and
when they return, they will be subject to all its penalties, as if such
marriage had been celebrated within the State whose public law they
have set at defiance.
There is one American case which is directly opposed to the principles
herein declared, the facts of which are precisely the same as in the case
before us. It is the case of Med way v. Needham, 16 Mass. R. 157,
which was strongly relied on by the learned counsel for the plaintiff
in error as authority to govern this case. But I think that case is
not supported by authority nor grounded on any sound principles
of law. That was the case of a marriage between a white person and
a negro. The parties were domiciled in Massachusetts, whose laws
at that time prohibited such marriages. They went into Rhode Island,
where such marriages were lawful, were there married, and returned
to Massachusetts. The Supreme Court of that State held the marriage
to be valid, and declared, in an elaborate opinion, that " a marriage
which is good by the laws of the country where it is celebrated, is valid
in every 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."
In commenting on this case, the lord chancellor, in Brook v. Brook
supra (219), says: "I cannot think 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 decisions in which
SECT. III.] KINNEY V. COMMONWEALTH. 97
the forms only of celebrating the marriage in the country of celebration
and the country of domicil were different ; and he took the distinction
between cases where the absolute prohibition of marriage is forbidden
on 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 absolutely 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 the marriage
is not prohibited, to celebrate a marriage forbidden by their own State,
and immediately returning to their own State, to insist on their
marriage being recognized as lawful."
Lord Cranworth, referring to the same case, said: "I also concur
entirely with my noble and learned friend that the American decision
of Medway v. Needham, cannot be treated as proceeding on sound
principles of law.
'•' The province or State of Massachusetts positively prohibited by its
laws, as contrary to public policy, the marriage of a mulatto with
a white woman ; and on one of the grounds, pointed out by Mr. Story,
such a marriage ought certainty to have been held void in Massachu-
setts, though celebrated in another province where such marriages were
lawful."
With such condemnation, from so high a source, of this decision
as authority, and when it is opposed by the decisions of our sister
Southern States above referred to, and contrary to sound principles of
law, I think, though a case exactly in point upon its facts, it can have
but little weight in forming our judicial determination of the question
before us in this case.
There is another American case also relied on by the counsel for the
plaintiff in error for the doctrine that " a marriage valid where cele-
brated is valid everywhere." It is a Kentucky case, Stevenson v. Gray,
reported in 17 B. Monr. R. 193. That was a marriage between a
nephew and his uncle's wife. Such a marriage was prohibited in Ken-
tucky, but not in Tennessee. The parties went into Tennessee, and
were there married and returned to Kentucky. It was held that the
marriage was valid in Kentucky. But it is to be noted that such
marriages are not declared by the Kentucky statute absolutely void, but
voidable only — that is, to be avoided by judgment of a district court
or court of quarterly sessions. The reasoning of the judge who de-
livered the opinion of the court in that case, shows that he treats the
case of a marriage voidable only, and not ipso facto void. If such
marriage has been declared absolutely void by the Kentucky statute,
the decision of the court, no doubt, would have been different.
In the seventh edition of Story's Conflict of Laws, p. 178, the
editor adds a section in which he says : The limitation defined by Lord
Campbell, chancellor, in Brook V. Brook, is certainly characterized by
great moderation and good sense ; that while the form of the contract,
VOL II. — 7
98 KINNEY V. COMMONWEALTH. [CHAP. VL
the rites and ceremonies proper or indispensable for its due celebration r
are to be governed by the laws of the place of the contract or of cele-
bration, 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, and in which the matrimonial residence is contemplated.
Hence, if the incapacity of the parties is such that no marriage could
be solemnized between them . . . and, without changing their domicil,
they go into some other country where no such limitation or restriction
exists, and there enter into the formal relation with a view to return
and dwell in the country in which such marriage is prohibited by posi-
tive law, it is but proper to say that a proper self-respect (of the State
or government in prohibiting such a marriage) would seem to require
that the attempted evasion would not be allowed to prevail.
I have thus considered, at length, the authorities, English and
American, on this question, because it is one of first impression in
this court, and because it is a question which materially affects public
morality, social order, and the best interests of both races. The
public policy of this State, in preventing the intercommingling of the
races by refusing to legitimate marriages between them, has been illus-
trated by its legislature for more than a century. Every well-organized
society is essentially interested in the existence and harmony and
decorum of all its social relations. Marriage, the most elementary and
useful of all, must be regulated and controlled by the sovereign power
of the State. The purity of public morals, the moral and physical
development of both races, and the highest advancement of our
cherished Southern civilization, under which two distinct races are to
work out and accomplish the destiny to which the Almighty has as-
signed them on this continent — all require that they should be kept
distinct and separate, and that connections and alliances so unnatural
that God and nature seem to forbid them, should be prohibited by
positive law, and be subject to no evasion.
Upon the whole case, I am of opinion that the marriage celebrated
in the District of Columbia between Andrew Kinney and Mahala Miller,
though lawful there, being positively prohibited and declared void by
the statutes of this State, is invalid here, and that said marriage was
a mere evasion of the laws of this State, and cannot be pleaded in bar
of a criminal prosecution here.
If the parties desire to maintain the relations of man and wife, they
must change their domicil and go to some State or country where the
laws recognize the validity of such marriages.
Upon the whole case, I am of opinion that there is no error in the
judgment of the circuit court affirming the judgment of the county
court, and that both be affirmed by this court.
The other judges concurred in the opinion of Christian, J.
Judgment affirmed. l
l Ace. S. v. Tuttv, 41 Fed. 753; Dupre v. Boulard, 10 La. Ann. 411; g. v.
Kennedy, 76 N. C. 251. But see Pearson v. Pearson, 51 Cal. 120. —Ed.
SECT. III.] DE BAUFFKEMONT V. DE BAUFFREMONT.
99
DE BAUFFREMONT v. DE BAUFFREMONT.
Court of Paris. 1876 : Court of Cassation. 1878.
[Reported Dalloz Jurisprudence, 1878, II. 1 ; 1878, I. 201.]
Henrietta Valentine de Riquet, countess of Caramau-Chima}',
Belgian by birth, married the Prince de Bauffremont, a French subject.
By a judgment of the Civil Tribunal of the Seine, April 7, 1874,
rendered upon the petition of Mine, de Bauffremont, and confirmed
by a judgment of the Court of Paris, Aug. 1, 1874, a judicial separa-
tion was decreed between the spouses. Afterwards, on Ma}' 3, 1875,
Mme. de Bauffremont became naturalized without her husband's au-
thorization, in the German duchy of Saxe-Altenburg. Then, taking
advantage of the German law, which admits divorce, and it would seem
considers Catholic spouses judicially separated as divorced, she married,
on October 24, 1875, before the officer of civil status at Berlin, the
Prince de Bibesco, a Roumanian subject. The Prince de Bauffremont,
before the Tribunal of the Seine, began this action to have declared null
the marriage and the act of naturalization of which we have spoken.
This petition was granted by a judgment of March 10, 1876. l The
Princess de Bauffremont appealed.
The Court. Henrietta Valentine de Riquet, countess of Caraman-
Chimay, Belgian by birth, became French according to Article 12 of
the Civil Code, by her marriage with the Prince de Bauffremont, a
subject of France. Since judicial separation relaxes without destroy-
ing the tie of marriage, the judgment of separation pronounced in
France upon her demand could not make her lose the nationality
which she had acquired ; she remained French since she remained the
wife of the Prince de Bauffremont. Granting that she is freed from
the duties of cohabitation, and that from this relative freedom one
may conclude (reserving the right to consider motives and circum-
stances) that she has the power of choosing a domicil where she
pleases, even in a foreign countr}', it does not follow that she may
likewise, of her own will without her husband's authorization, change
her nationality. The French law, which has become her statute per-
sonal, remains always fixed to her person, and follows her wherever she
fixes her residence or her domicil. The necessity of her husband's
authorization, except in simple acts of administering her property,
is a legal one, as a result of the power with which the husband remains
invested after a judicial separation. The change of nationality forms
no exception ; all the more where, as in this case, the wife attempts
it, by favor of a foreign law not her own, as a means of legally chang-
ing her judicial separation into a divorce against her husband's will
1 The judgment of the Tribunal of the Seine, and part of the case involving a mere
question of procedure, an' omitted. — Ki>.
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 <lo so; that thwarted
by circumstances and encouraged by their intention to marry one
another as soon as those circumstances would permit, they yielded and
122 IN RE GROVE. [CHAP. VI.
lived together for several years as husband and wife ; that of this
intercourse they had three children." Then after stating the names
and dates of the births and baptisms of these children, as above set
forth, he stated " that very extraordinary circumstances thwarted the
resolution he had formed to marry Martha Powis, and induced him to
marry Miss Elizabeth Woodhouse," and stated the death of his wife
Elizabeth and his subsequent marriage with Martha Powis. Then the
petition stated, inter alia, that the petitioner, having been informed
that in Geneva, his native country, subsequent marriage legitimized
illegitimate-born children, made application in order to prove, by the
certificates there mentioned, the births of his son Marc, and his
daughters Sarah and Elizabeth, praying the Council to grant him
record of his proofs and declarations, so that no one might question
to his above-mentioned three children, their condition of legitimate
children in Geneva, his native country. An order was made by the
Council granting record accordingly, and the births of these three
children were entered in the register of births of children of Genevese
parents born in foreign parts.
The statements contained in this petition were borne out by the
certificates attached thereto, and these certificates were put in evidence
in this action.
Marc Thomegay made his will on the 9th of March, 1779, describing
himself as of Tottenham, in the county of Middlesex, and died on the
2d of December, 1779. From the will it appeared that he was carry-
ing on business in partnership with his son, and was entitled to a
leasehold house, workshops, and premises in Moorfields, within the
parish of St. Leonard's, Shoreditch. It did not appear when this lease
was granted, but in the baptismal certificates of 1744 and 1745 the
parents were described as of Ayliffe Street, and Moorfields was not
mentioned in any certificate until the year 1750.
There was evidence that according to the laws of the canton of
Geneva illegitimate children are legitimated by the subsequent marriage
of their father and mother, notwithstanding the intervening marriage
of their father with another woman.
The Chief Clerk, by his certificate made in this action, in substance
left to the court the question whether under these circumstances Sarah
Delom and the other two children born of Marc Thomegay and Martha
Powis during their cohabition were to be taken as legitimate or not ;
and found that if Sarah Delom ought to be treated as legitimate, then
the next of kin of the intestate were the descendants of the said Sarah
Delom, who were represented by the plaintiff, and that if not, such
next of kin was the Falquet family.
The further consideration came on for hearing before Mr. Justice
Stirling on the 20th of July, 1887. 1
The plaintiff appealed [from the judgment of Stirling, J].
1 The arguments and the decision of Mr. Justice Stirling are omitted. —Ed.
SECT. IV. J
IN RE GROVE. 123
Frv, L. J. 1 I agree entirely with the conclusion arrived at by the
Lord Justice, and I am glad to say that I also agree in the law which
he has laid down, but the facts of the case influence my mind some-
what differently, and I pick my way through those facts to the same
conclusion by a somewhat different course. I will, therefore, en-
deavor to state, as briefly as I can, the view I take of this case.
The appellant claims through Sarah Thomegay, who was born in
1744, in this country, and was an illegitimate child of Marc Thomegay
and Martha Powis. At birth that child took the domicil of its mother
and it took the status of illegitimacy, according to the law of the domicil
of its mother, and it took also the capacity to change that status of
illegitimacy for one of legitimacy, provided that according to the law
of the domicil of the father, the subsequent marriage would work
legitimation. The position of such a child, therefore, is curious, taking
domicil and status from the mother, but taking the potentiality of
■changing its status from the putative father. That I take to be the
law applicable to this case, and that gives rise to the first question,
what was the domicil of the father in the year 1744?
It must be taken that the domicil of the father was Genevese at the
date of the birth of Sarah in 1744. If his domicil were English, there
would be an end of the case ; if the domicil were Genevese, as I hold,
then arises the second question, which is this : What was his domicil
at the date of the subsequent marriage of the parents in 1755? It
appears to me that the domicil governs the effects of the marriage.
That I take to be the general law, and it is so laid down by Mr. Justice
Story, in the 189th paragraph of his work on Conflict of Laws: " In
a o-eneral sense the law of the matrimonial domicil is to govern in
relation to the incidents and effects of marriage." If, therefore, the
subsequent marriage was governed by the English domicil it would
seem to follow that no legitimation can take effect. If, on the con-
trary, the subsequent marriage is governed by Genevese domicil, it
would seem that subsequent legitimation does take effect. It may be,
though on this point no evidence has been adduced, that the Genevese
law would recognize an English marriage as legitimating the previously
born issue. Whether that be so or not I do not know, but even if it
be, my conclusion is, that we should not follow the Genevese law, if it
gave a greater effect to a marriage contract in England when the
parents have an English domicil, than the English law gave to it; and
for this reason, that the State imposes on all persons domiciled in it,
its own conclusions as to the effect of marriage. Here again 1 would
refer to the same paragraph in Mr. Justice Story's Conflict of Laws,
where, citing the judgment of Lord Robertson, a Scotch judge, he
says: "Marriage is a contract sui generis; and the rights, duties,
and obligations which arise out of it are matters of such importance 1<>
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><lr domicil of the
Estills, at the time of the passage of the act of the legislature in
question. William was, by law, the legitimate son of Samuel in Arkan-
sas. Can it be said that he lost his status by crossing the State line
into the frontier parish of Carroll, some years afterwards? We think
not. The heritable quality of legitimacy which he had received from
the legislature of the State of his residence accompanied him when
he changed his domicil.
The error of the judgment appealed from consists in regarding
William Estill as illegitimate, at the time of his father's death. But he
was not so. The original taint of illegitimacy had been removed by
the act of the legislature. Legitimacy and illegitimacy are the re-
sult of positive laws, which differ very materially in different countries.
126 SCOTT V. KEY. [CHAP. VL
To illustrate this idea, suppose William Estill had been born in Louisi-
ana, and that after his birth his father and mother had got married in
Louisiana, and subsequently to their marriage removed with their child
to Arkansas. Their marriage after his birth would have legitimated
their offspring by the law of their domicil ; yet by the law of Arkansas
a subsequent marriage would have not produced that effect. Neverthe-
less, the status of legitimacy being acquired in Louisiana would have
accompanied him into Arkansas. There are many precedents, in the
legislation of various States of this Union, of legitimation bv act of the
legislature, and particularly in Louisiana. This seems identical with
the legitimation per rescriptum principis of the Roman law.
Voet, Commentarius ad Pandectas, lib. 25, tit. 7, §§ 4 and 13.
If it is true that a general law of the place of domicil, changing the
status of its citizens according to circumstances, is a personal statute,
accompanying the party to every other country, provided the circum-
stances which operate such change have occurred before the change of
domicil, which we consider to be the doctrine settled in Louisiana, a
fortiori, is a special law, removing a disability from a particular citizen
by name, such a statute ? The constitutional power of the legislature
to enact such exceptional enabling statutes was drawn directly in ques-
tion, and ruled affirmatively, in the case of Pritchard v. Citizens Bank,
8 La. 133. The maxim cited by Story, Conflict of Laws, § 51, from
Boullenois, " Habilis vel inhabilis in loco domicilii, est habilis vel inha-
bilis in omni loco," must therefore be deemed law in Louisiana.
And is it not correct to say, that the statute of Arkansas, to legiti-
mate William Estill (which is a personal statute), conflicted with the
statute of distributions of Louisiana (which is a real statute) ; and con-
sequently, as was held in Saul's case, is overruled by the latter statute?
By the Louisiana statute of distributions, the legitimate son inherits in
preference to the brothers and sisters of the deceased. By the effect
of the statute of Arkansas, William Estill was the legitimate son of
Samuel Estill. Upon the demise of Samuel Estill in Louisiana, in
1849, fourteen years after that statute, William Estill, as his legitimate
son, was his heir, by the law of Louisiana.
In confirmation of this view of the subject, we may quote the lan-
guage of the High Court of Errors and Appeals of Mississippi, in the
case of Smith v. Kelly, 23 Miss. Rep., 170: "It is a well settled
principle, that the status or condition, as to the legitimacj', must be
determined by reference to the law of the country where such status or
condition had its origin."
Judgment of the District Court reversed ; and judgment for defend-
ants, with costs in both cases.
Spofford, J. It was competent for the legislature of Arkansas, the
domicil of its origin, to fix the status of William Estill.
In substance and effect, that legislature gave him the status of a
legitimate son of Samuel Estill.
The Arkansas statute, legitimating William Estill, was a personal
statute.
SECT. IV.] BABNUM V. BARNUM. 127
Therefore, the status of a legitimate son of Samuel Estill would ac-
company William Estill into whatever country he might go.
He came hither with the status. He inherited, by our law, from his
father, Samuel Estill, because he was to all intents and purposes a
legitimate son, having become so by the law of the domicil of his
origin, and not in fraud of our law, nor in violation of its policy.
I, therefore, concur in the opinion and judgment of Mr. Justice
Buchanan.
Merrick, C. J., dissenting.
BARNUM v. BARNUM.
Court of Appeals of Maryland. 1875.
[Reported 42 Maryland, 251.]
This was a bill for the distribution of the property of David Barnum.
John R. Barnum claimed a distributive share as grandson of David and
son of Richard Barnum. John R. Barnum was born in Arkansas,
while his father was domiciled there ; the court, however, decided, that
his parents were not married, and that he was illegitimate. He having
died during the progress of the suit, his representative appealed. *
Alvet, J. It is contended that notwithstanding there may have been
no marriage between Dr. Barnum and Caroline Butler, yet by the opera-
tion of the act of the legislature of Arkansas, before referred to, John
R. Barnum was rendered legitimate, as if a valid marriage had taken
place, and was therefore capable of taking whatever right that would
or could devolve on any legitimate child of his father ; that the act was
retroactive, and related back to the time of the birth of the child de-
clared to be heir.
In this, however, we do not agree with the counsel of the claimants.
As we have seen, the act makes no reference to any marriage, and in
no sense could operate to confirm any defective or imperfect marriage.
Its operation does not even depend upon the fact that John R. Barnum
was the child of Richard Barnum. It simply, by force of the law itself,
and not of the circumstances of birth or relationship, gave to John R.
Barnum a personal status, with capacity to inherit from Richard Bar-
num as heir. This act could have no extraterritorial operation what-
ever, except as to any rights that may have been acquired under it, in
the State of Arkansas. As to such rights they would be respected
everywhere. Sto. Confl. L., § § 101, 102. But as to capacity to
acquire property beyond the State passing the act, by virtue of the
particular status given the party, that, the legislature could not confer.
Even if the act had professed to legitimate John R. Barnum, without
1 This short statement is substituted for that of th" reporter. Only bo much of the
opinion as discusses the legitimacy of John R, Barnum is given. — El*.
128 KOSS V. ROSS. [chap. VI.
reference to previous marriage, it could have no operation here, and no
rights involved in this case could be affected by it. This would seem
to be clear both on reason and authority. 5 Com. Dig. Parliament
(K), p. 301 ; Birtwhistle v. Vardill, 5 B. & Cr., 438 ; Houlditch v. Mar-
quess of Donegall, 2 Clark & Finn., 476 ; Smith v. Derr's Adm'rs, 34
Penn. St., 126 ; Sto. Confl. L., §§ 87, 87 a.
The claim, therefore made in the right of John R. Barnum, must be
rejected. 1
ROSS v. ROSS.
Supreme Judicial Court of Massachusetts. 1880.
[Reported 129 Massachusetts, 243.]
Gray, C. J. 2 This case presents for adjudication the question which
it was attempted to raise in Ross v. Ross, 123 Mass. 212, namely,
whether a child adopted, with the sanction of a judicial decree, and
with the consent of his father, by another person, in a State where the
parties at the time have their domicil, under statutes substantially
similar to our own, and which, like ours, give a child so adopted the
same rights of succession and inheritance as legitimate offspring in the
estate of the person adopting him, is entitled, after the adopting parent
and the adopted child have removed their domicil into this Common-
wealth, to inherit the real estate of such parent in this Commonwealth
upon his dying here intestate.
The question how far a child, adopted according to law in the State
of the domicil, can inherit lands in another State, was mentioned by
Lord Brougham in Doe v. Vardill, 7 CI. & Fin, 895, 898, and by Chief
Justice Lowrie in Smith v. Derr, 34 Penn. St. 126, 128, but, so far as
we are informed, has never been adjudged. It must therefore be de-
termined upon a consideration of general principles of jurisprudence,
and of the judicial application of those principles in analogous cases.
As a general rule, when no rights of creditors intervene, the succes-
sion and disposition of personal property are regulated by the law of
the owner's domicil. It is often said, as in Cutter v. Davenport, 1
Pick. 81, 86, cited by the tenent, to be a settled principle, that "the
title to and the disposition of real estate must be exclusively regulated
by the law of the place in which it is situated." But so general a
statement, without explanation, is liable to mislead. The question in
that case was of the validity of an assignment of a mortgage of real
estate ; and there is no doubt that b}' our law the validity, as well as
the form, of any instrument of transfer of real estate, whether a deed
or a will, is to be determined b}- the lex ret sitae. Goddard v. Sawyer,
1 Ace. Lingen v. Lingen, 45 Ala. 410. — Ed.
2 Part of the opinion only is given. — Ed.
SECT. IV.] KOSS V. KOSS. 1-9
9 Allen, 78; Sedgwick v. Laflin, 10 Allen, 430, 433; United States
v. Crosby, 7 Cranch, 115; Clark v. Graham, 6 Wheat. 577; Kerr w.
Moon, 9 Wheat. 505 ; McCormick v. Sullivaut, 10 Wheat. 192.
It is a general principle, that the status or condition of a person,
the relation in which he stands to another person, and by which he is
qualified or made capable to take certain rights in that other's property,
is fixed by the law of the domicil ; and that this status and capacity are
to be recognized and upheld in every other State, so far as they are not
inconsistent with its own laws and policy. Subject to this limitation,
upon the death of any man, the status of those who claim succession or
inheritance in his estate is to be ascertained b}" the law under which that
status was acquired ; his personal property is indeed to be distributed
according to the law of his domicil at the time of his death, and his real
estate descends according to the law of the place in which it is situated ;
but, in either case, it is according to those provisions of that law which
regulate the succession or the inheritance of persons having such a
status.
The capacity or qualification to inherit or succeed to property, which
is an incident of the status or condition, requiring no action to give it
effect, is to be distinguished from the capacity or competency to enter
into contracts that confer rights upon others. A capacity to take and
have differs from a capacity to do and contract ; in short, a capacity of
holding from a capacity to act. Generally speaking, the validity of a
personal contract, even as regards the capacity of the party to make it,
as in the case of a married woman or an infant, is to be determined by
the law of the State in which it is made. Milliken v. Pratt, 125 Mass.
374, and authorities cited. 1
The legal adoption by one person of the offspring of another, giving
him the status of a child and heir of the parent by adoption, was un-
known to the law of England or of Scotland, but was recognized by the
Roman law, and exists in many countries on the continent of Europe
which derive their jurisprudence from that law. Co. Lit. 7 A, 237 b ; 4
Phillimore, § 531 ; Mackenzie's Roman Law, 120-124 ; Whart. Coufl.
§ 251 . It was long ago introduced, from the law of France or of Spain,
into Louisiana and Texas, and more recently, at various times and by
different statutes, throughout New England, and in New fork, New
Jersey, Pennsylvania, and a large proportion of the other States of the
Union. Euselier v. Masse, 4 La. 423; Vidal v. Commagere, 13 La.
Ann. 516 ; Teal v. Sevier, 26 Tex. 516 ; Miss. St. 1846 ; Hutch. Miss.
Code, 501 ; Alabama Code of L852, § 2011 j N. Y. St. 1873, e. 880;
1 The court in omitted portions of the opinion, cited and discussed al length the
following cases, among others: Doe v. Vardill, 2 CI. & F. 571 ; S Iden v Patrick, 5
Paton,194,I Macq. 535 ; Strathmore Peerage, 6 Paton, 645 ; Rose v. Ross, 4 Wils.&Sh.
289; Don's Estate, 4 Drewry, 194 ; Skottowe v. Young, L. R. 11 Eq. 474; Loring v.
Thorndike 5 All. 257 ; Smith v. Kelly, 23 Miss. 167; Scot) v. Key, M La. Ann. 232;
Barnnm v. Barnum, 42 M.I. 251 ; Smith v. Derr, 34 Pa. st. 126; Harvey v. Ball, 32
In.l. 98; Lingen v. Lingen, 45 Ala. 4lo ; Com. V. Nancrede, 32 Pa. St. 389 ; Shafer v
Enea. 54 Pa. St. 304. — Ed.
VOL. II.
130 eoss V. ROSS. [chap, vl
N. J. Rev. Sts. of 1877, § 1345 ; Penn St. 1855, e. 456 ; Purd. Dig. 61 ;
1 Southern Law Rev. (N. S.) 70, 79 and note, citing statutes of other
States. One of the first, if not the very first, of the States whose juris-
prudence is based exclusively on the common law, to introduce it, was
Massachusetts. . . .
The statute of Pennsylvania of 1855, which is made part of the case
stated, and under which the demandant was adopted by the intestate in
1871, while both were domiciled in that State, corresponds to these
statutes of this Commonwealth in most respects. Like them, it per-
mits any inhabitant of the State to petition for leave to adopt a child ; it
requires the petition to be presented to a court in the county where the
petitioner resides ; it requires the consent of the parents or surviving par-
ent of the child ; it authorizes the court, upon being satisfied that it is fit
and proper that such adoption should take effect, to decree that the
child shall assume the name, and have all the rights and duties of a
child and heir, of the adopting parent ; and it makes the record of that
decree evidence of that fact.
The statute of Pennsylvania differs from our own only in not requir-
ing the consent of the petitioner's wife, and of the child if more than
fourteen years of age; in omitting the words "as if born in lawful
wedlock " in defining the effect of the adoption ; in also omitting any
exception to the adopted child's capacity of inheriting from the adopt-
ing parent ; and in expressly providing that, if the adopting parent has
other children, the adopted child shall share the inheritance with them
in case of intestacy, and he and they shall inherit through each other
as if all had been lawful children of the same parent. . . .
The law of the domicil of the parties is generally the rule which
governs the creation of the status of a child by adoption. Foster v.
Waterman, 124 Mass. 592 ; 4 Phillimore, § 531 ; Whart. Confl. § 251.
The status of the demandant, as adopted child of the intestate, in the
State in which both were domiciled at the time of the adoption, was
acquired in substantially the same manner, and was precisely the same
so far as concerned his relation to, and ,his capacity to inherit the estate
of, the adopting father, as that which he might have acquired in this
Commonwealth had the parties been then domiciled here. In this
respect, there is no conflict between the laws of the two Common-
wealths. The difference between them in regard to the consent of the
wife of the adopting father, and to the inheritance of estates limited to
heirs of the body, or inheritance from the kindred, or through the
children, of such father, are not material to this case, in which the only
question is whether the adopted child or a brother of the adopting
father has the better title to land in the absolute ownership of such
father at the time of his death. Whatever effect the want of formal
consent, on the part of the wife of the intestate, to the adoption of the
demandant, might have, if she were claiming anj - interest in her hus-
band's estate, it can have no bearing upon this controversy between the
adopted child and a collateral heir.
SECT. IV.] KOSS V. ROSS. 131
The tenant in his argument laid much stress on the words of the stat-
ute of descents and of the statutes of adoption of this Commonwealth.
The statute of descents which was in force at the time of the death
of the intestate in 1873 enacts that when a person dies intestate, seised
of any real estate, it shall descend, subject to his debts, and saving
rights of homestead, " in the manner following : First. In equal shares
to his children, and to the issue of an}- deceased child by right of rep-
resentation ; and if there is no child of the intestate living at his
death, then to all his other lineal descendants," etc. "Second. If he
leaves no issue, then to his father. Third. If he leaves no issue nor
father, then in equal shares to his mother, brothers, and sisters," etc.
"Eighth. If the intestate leaves a widow and no kindred, his estate
shall descend to his widow ; and if the intestate is a married woman
and leaves no kindred, her estate shall descend to her husband. Ninth.
If the intestate leaves no kindred, and no widow or husband, his or her
estate shall escheat to the Commonwealth." Gen. Sts. c. 91, § 1. See
also St. 1876, c. 220.
But this section must be understood as merely laying down general
rules of inheritance, and not as completely and accurately defining how
the status is to be created which gives the capacity to inherit. It does
not undertake to prescribe who shall be considered a child, or a widow,
of a husband, or what is necessary to constitute the legal relation of
husband and wife, or of parent and child. Those requisites must be
sought elsewhere. The words "children" and "child," for instance,
in the first clause, "issue," in the phrase " if he leaves no issue," in
subsequent clauses, and "kindred," in the last two clauses of this
section, clearly include a child made legitimate by the marriage of its
parents and acknowledgment by the father after its birth under § 4 of
the same chapter, or a child adopted under the provisions of c. 110 of
the General Statutes, or c. 310 of the Statutes of 1871.
These statutes, after providing how a child may be adopted in this
Commonwealth with the sanction of a decree of the Probate Court in
the county in which the adopting parent resides (or, under the St. of
1871, in the county where the child resides if the adopting parent is
not an inhabitant of this Commonwealth), enact that a child "so
adopted " shall be deemed, for the purpose of inheritance, and other
legal consequences of the natural relation of parent and child, to be
the child of the parent by adoption. St. 1851, c. 324, § 6 ; Gen. Sts. c.
110, § 7; St. 1871, c. 310, § 8. It is argued that the words "so
adopted " imply that children otherwise adopted are incapable of in-
heriting lands in this Commonwealth. But it appears to us that these
words, in the connection in which they stand, warrant no such implica-
tion ; and that the legislature, throughout these statutes, had solely in
view adoption by or of inhabitants of this Commonwealth, and did not
intend either to regulate the manner, or to define the effects, of adop-
tion by and of inhabitants of other States according to the law of their
domicil.
132 BLYTHE V. AYRES. [CHAP. VI.
We are not aware of any case, in England or America, in which a
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 capac-
ity thereby created of succeeding to and inheriting property, real as
well as personal, in any other country the laws of which allow a like
change of status in a like manner with a like effect under like circum-
stances.
We are therefore of opinion that the legal status of child of the intes-
tate, once acquired by the demandant under a statute and by a judicial
decree of the State of Pennsylvania, while the parties were domiciled
there, continued after their removal into this Commonwealth, and that
by virtue thereof the demandant is entitled to maintain this action.
It is worthy of mention (although it cannot of course affect the rights
of inheritance which had absolutely vested on the death of the intes-
tate ; Tirrel v. Bacon, 3 Fed. Rep. 62) that by a recent statute of this
Commonwealth " any inhabitant of any other State, adopted as a child
in accordance with the laws thereof, shall, upon proof of such fact, be
entitled in this Commonwealth to the same rights, as regards succes-
sion to propert}', as he would have enjoyed in the State where such
act of adoption was executed, except in so far as they conflict with the
provisions of this act." St. 1876, c. 213, § 11.
Judgment for the demandant. 1
BLYTHE v. AYRES.
Supreme Court of California. 1892.
[Reported 96 California, 532.]
Garoutte, J. 2 This is an action instituted under section 1664 of
the Code of Civil Procedure by the plaintiff, a minor, through her
guardian, to determine the heirship and title to the estate of Thomas H.
Blythe, deceased. . . . Plaintiffs claim is based upon sections 230 and
1387, respectively, of the Civil Code of California. Section 230 reads
as follows : k ' The father of an illegitimate child, by publicly acknowl-
edging it as his own, receiving it as such, with the consent of his wife,
if he is married, into his family, and otherwise treating it as if it were
a legitimate child, thereb}- adopts it as such ; and such child is there-
upon deemed for all purposes legitimate from the time of its birth.
The foregoing provisions of this chapter do not apply to such an
adoption." Section 1387, as far as it pertains to the matters involved
in this litigation, provides : " Every illegitimate child is an heir of the
1 Ace. Van Matre v. Sankey, 148 111. 5.36, 36 N. E. 628 ; Gray v. Holmes, 57 Kan.
217, 45 Pac. 596 ; Melvin v. Martin, 18 R. I. 650, 30 Atl. 467. And see Estate of Sun-
derland, 60 la. 732, 13 N. W. 655. — Ed.
2 Part of the opinion is omitted. — Ed.
SECT. IV.] BLYTHE V. AYRES. 133
person who, in writing, signed in the presence of a competent witness,
acknowledges himself to be the father of such child." . . .
The facts found D3- the court which face us while we are engaged in
a consideration of the first branch of this subject ma}' be succinctly and
substantially stated as follows : (\) That plaintiff was born in England,
upon December 18, 1873, and was the issue of Thomas II. Blythe and
Julia Perry ; (2) that Julia Perry was a native of England, domiciled
therein, and continued to there reside until one month after the death
of said Blythe ; (3) that plaintiff remained in England until after the
death of Blythe, when she came to California, and said Blythe was
never at any time within any of the countries of Europe after the 29th
day of August, 1873 ; (4) that said Blythe was a citizen of the United
States and of the State of California, domiciled in said State, and died
intestate therein April 4. 1883, leaving surviving him no wife, no father,
no mother, and no child, save and except said Elorence Blythe, the
plaintiff herein ; (5) that said Thomas H. Blythe and said Julia Perry
never were married, and said plaintiff was begotten while said Blythe
was temporarily sojourning in England, and was born after said Blythe's
return to California, and that said Blythe never was married.
Before passing to the merits of the discussion, we pause a moment to
say that the verb "adopts," as used in section 230, is used in the sense
of "legitimates,'' and that the acts of the father of an illegitimate child,
if filling the measure required by that statute, would result, strictly
speaking, in the legitimation of such child, rather than in its adoption.
Adoption, properly considered, refers to persons who are strangers in
blood; legitimation, to persons where the blood relation exists. (See
law dictionaries, — Bouvier's, Black's, Anderson's, and Rapalje's.)
This is the distinguishing feature between adoption and legitimation, as
recognized by all the standard law writers of the day who have written
upon the subject ; and, for the reason that the text writers and the
decisions of courts to which we shall look for light and counsel treat the
subject as a question of legitimation, we shall view the matter from that
standpoint.
The section is broad in its terms. It contains no limitations or con-
ditions, and, to the extent of the power vested in the legislature of the
State, applies to all illegitimates, wherever located, and wherever born.
The legislature has not seen fit to make any exception to its operation,
and, as was said by Taney, C. J., in Brewer v. Blougher, II Pet. 178,
when considering a quite similar provision of a statute : '• In the case
before us the words are general, and include all persons who come
within the description of illegitimate children; . . . and when the
legislature speaks in general terms of children of that description, with-
out making any exceptions, we arc bound to suppose they design to
include the whole class." Bar, in his work on International Law (page
434), says: " Legitimation <>(' 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., <li'l
not sit. — Ed.
136 EDDIE V. EDDIE. [CHAP. VI.
EDDIE v. EDDIE.
Supreme Court of North Dakota. 1899.
[Reported 79 Northwestern Reporter, 856.]
Tottng, J. 1 This is a contest between the two sets of children of
one Henrick Nickolai Eddie, deceased, to determine the right of suc-
cession to his estate. Eddie, the decedent, died in Grand Forks
Count}' October 9, 1896, without will, and possessed of considerable
property, both personal and real, situated in that county. Henrick
Ferdinand Eddie aud Axel Eddie, who are plaintiff's herein, are the
natural children of decedent. The defendants are his children by mar-
riage, and are legitimate. The entire contest is as to the right of these
natural children to share in the estate of their father by inheritance,
under the laws ot this State. . . .
The undisputed facts which are pertinent to the issues are these:
Henrick Nickolai Eddie, the decedent, was born in the kingdom of
Norway in 1843, near Levanger, where he resided continuously until
1869, when he came to the United States, where he lived thereafter and
up to the time of his death. Prior to coming to this country, he
cohabitated with one Sarah Rinnan, who also lived at Levanger. The
plaintiffs are the issue of this intercourse : Henrick Ferdinand Eddie,
born in 1861, and Axel Eddie, born in 1865. Both of these children
lived with their mother up to the time of her death, which occurred
about twenty years ago, and have always resided in Norway. There
is no claim that their parents were ever married. After coming to this
country, and in 1871, at La Crosse, Wis., Henrick Nickolai Eddie, the
decedent, married Oleaana Gorden. The defendants are the issue of
that marriage. After leaving Norway, in 1869, decedent never saw or
communicated with the plaintiffs or their mother in any way. Neither
did he ever acknowledge these children as his own by written instru-
ment. The plaintiffs base their right to inherit upon a claim that they
were adopted by their father, and thereby became legitimated, and, as
a result, became his heirs under the laws of this State. The material
facts upon which the claim of adoption rests are found in the seventh
finding of fact of the district court, which is as follows : "That during
all the time after the birth of each of said plaintiffs, and up to the date
of the immigration of said Henrick Nickolai Eddie to the United
States of America, said Henrick Nickolai Eddie treated each of these
plaintiffs as if he were a legitimate child of him, said Henrick Nickolai
Eddie ; that during said time he furnished support and maintenance
to each of said children and to their said mother; that during said
time he corrected and reproved said children ; that during said time
he lived a portion of the time with the said children and their said
1 Part of the opinion is omitted. — Ed.
SECT. IV.] EDDIE V. EDDIE. 137
mother at Levanger, aforesaid ; that during all of said time the said
Henrick Nickolai Eddie publicly acknowledged each of said children,
Henrick Ferdinand and Axel Eddie, as his own." The district court.
in its conclusions of law, found that plaintiffs were adopted by decedent
as his own children, by his acts, prior to 18(59, and that the}' were his
heirs at law, and as such entitled to participate in the distribution
of his estate. It will be noticed that all of the acts of the decedent
v/hich it is contended amount to an adoption of plaintiffs occurred in
Norway, when he and plaintiffs and their mother were all residents of
that kingdom. There is nothing in the record to show what the law
of Norway is, or that there is any legal authority in that country for
the legitimating or adoption of bastard children. Neither is it at all
material, for appellants do not claim to have been legitimated and
given the capacity to inherit by the laws of their own country, but rest
their alleged status of legitimated children and claim to inheritable
blood solely upon the laws of this State, where their father resided at
his death, and where the estate is situated. It is contended that the
acts of recognition by their father which occurred in Norway prior
to the year 1869, which are set out in the finding of fact before quoted,
legitimized and made them heirs under section 2806, Rev. Codes,
which reads as follows : " The father of an illegitimate child by pub-
licly acknowledging it as his own, receiving it as such with the consent
of his wife, if he is married, into his family, and otherwise treating it
as if it was a legitimate child, thereby adopts it as such, and such child
is thereupon deemed for all purposes legitimate from the time of its
birth. The foregoing provisions of this chapter do not apply to such
an adoption." The district court reached the conclusion that there
had been an adoption, and consequent legitimation, under this statute.
Accepting the facts found by that court as true, we are yet not able to
reach the same result. It is agreed that the laws of this State regula-
ting the descent and distribution of property govern this estate.
This follows necessarily from an application of the rule that personal
property descends according to the law of domicil of the owner, and
real estate under the law of the place where situated, for in this case
both the real and personal property, as well as the domicil of the
owner, were within this State. Comity between States has not gone
to the extent of recognizing the right of one State to designate the
persons to whom realty situate in another State shall descend, and
doubtless never will. Another principle which is as universally recog-
nized is that the laws of each State fix the status of the persons
domiciled therein. This was expressed in Ross r. Ross, 129 Mass.
243, as follows: " It is a general principle that the status or condi-
tion of a person, the relation in which he stands to another person, and
by which he is qualified or made capable to take certain rights in that
other's property, is fixed by the law of the domicil, and that this
status and capacity are to be recognized and upheld in every Stale
so far as they are not inconsistent with its own laws and policy." We
138 EDDIE V. EDDIE. [CHAP. VI.
may also say that the domicil of an illegitimate child is that of its
mother until' it acquires one for itself, and that these claimants were,
therefore, at all times domiciled in the kingdom of Norway. It is
apparent that the rights of claimants are determined by the construc-
tion to be given to section 2806, Rev. Codes, upon which they rely.
Is it a statute of descent or a statute fixing status? If it is a statute
of descent, merely descriptive of a class of illegitimates who are thereby
authorized to inherit property situated in this jurisdiction, the fact that
claimants were domiciled beyond the confines of the State, and in a
foreign land, will deprive them of no rights which the State may have
given to them in the estate of the intestate. But, on the other hand,
Tf it is construed as a statute of adoption, creating for those domiciled
within the State a status of legitimacy between the illegitimate and its
father, in all things like the adoption of another child save in the pro-
cedure, and followed by the same legal consequences, botli to parent
and child, then there can be no pretence that the acts which were all
done without the jurisdiction, and in a foreign State, would be a
compliance with the section quoted so as to constitute an adoption
as so construed ; for neither father, mother, children, nor property
were in the State or territory when the acts of adoption are said to
have occurred. Their own land attached to their status the stigma
of illegitimacy. While so domiciled, it was not within the power of
another State to remove it. But this absence of power to make or
alter the status of the subjects of another State implies no restriction
upon the right of the State to control the descent of real estate within
its limits, and to lend the aid of its laws to convey their respective
interests therein to such classes of persons as it may have designated
as heirs, regardless of where they may be domiciled, or the status
which they may have. Chapter 8 of the Civil Code, in which the
section of the statute is found through which the plaintiffs claim a
right to inherit, is composed of ten sections. The first seven sections
provide for the adoption, by any adult person, of minor children other
than his or her own, by a decree of the district court of the county of
the residence of the adopting parent. The eighth fixes the status of
the child so adopted as that of one born in lawful wedlock. The
following section provides that the decree shall deprive its natural par-
ents of all legal rights respecting it, and frees the adopted child from
the obligations of obedience and maintenance to its natural parents.
The chapter is concluded by the section in question, which is as
strictly a statute of adoption as those preceding. By the former, one
may adopt only the child of another, and then, by a decree of court,
entered in the public records. By the latter the father is permitted to
adopt his own child, not by public proceedings, and by written docu-
ment containing and perpetuating the record of his child's disgrace,
and his own shame, but by voluntarily assuming the usual relation and
duties of a father; or, as expressed in the statute, "publicly acknowl-
edging it as his own, receiving it as such with the consent of his wife,
SECT. IV.] SKOTTOWE V. FEKRAND. 139
if he is married, into his famil}-, and otherwise treating it as if it were
a legitimate child." The adoption in fact is made an adoption in law,
and the statute serves the same purpose as the decree, " and such
child is thereupon deemed for all purposes legitimate from the time of
its birth."' In short, all of the mutual rights and duties of parent and
child are called into being, placing upon the father the legal obligation
of care, education, and support, and giving to him the custody of the
child, as well as a right to its earnings; while the child so adopted
becomes bound to perform all of the duties of a legitimate child. The
status thus created is that of a child adopted by regular procedure
of court. Section 2802 of this chapter by its language expressly limits
the right of adoption by application to the district court to inhabitants
of the State. While it is true, the father of an illegitimate child is not
required to pursue the same steps to legally adopt his own child, yet, in
view of the fact that the same status is created, and the same mutual
and legal obligations between the adopting parent and his child result,
the conclusion is irresistible that this section also only applies to
parents who are domiciled within the State at the time the adoption in
fact occurs. This view is in accord with the holding of the Supreme
Court of California, where this same statute has been in force since
1873. See Blythe v. Ayres, ( J6 Cal. 532. One of the legal conse-
quences resulting from the status so created is the right to inherit, but
this right does not arise from the mere act of adoption, but is
elsewhere expressly given to one who has been so adopted. ... In
this case both the petitioners and their father were domiciled in
Norway when the acts of adoption are said to have occurred. Such
acts did not, therefore, affect their status in this State. The petitioners
were not adopted under the laws of this State, and are therefore not
entitled to inherit under section 3744, Rev. Codes. The judgment of
the district court is therefore reversed. All concur.
SKOTTOWE r. FERRAND.
Cockt of Cassation, France. 1857.
[Reported Journal du Palais, 1858, lOC.j
The Court. The judgment from which appeal was taken recited
that Thomas Skottove [Skottowe] was horn an Englishman, was never
naturalized in France, and has always preserved his quality as English-
man ; but it also recited that said Skottove lived in France for a great
number of years, married there twice successively, and had there his
domicil after his second marriage with Sylvine Morland, a French-
woman, which was celebrated al la Ferte* St. Aubin, October 26, 1858.
After this marriage lie recognized two natural children he had by
her, iu France, in 1851 and 1852.
140 SKOTTOWE V. FEKKAND. [CHAP. VI.
Eno-lish legislation and decisions (supposing them opposed to the
legitimation of natural children by the subsequent marriage of the
parents) in case of a marriage celebrated in France, when the father
alone is English, domiciled in France, the mother French and the
children born in France, could not deprive this woman of the right
(which she derived from the French law, the law of the matrimonial
domicil to which the intending spouses are supposed to have wished
to submit themselves) to legitimate her children by her marriage with
their father, or deprive the children of the benefit of this legitimation.
This tacit agreement of the future spouses at the time when they
were to be united in marriage should produce, in France, complete
and indivisible effects as well concerning the father as concerning the
mother and children ; otherwise it would not be a true legitimation.
The good faith of the mother would be defrauded, as well as the hopes
which, in consenting to the marriage, she had reposed in her country's
laws, for herself as well as for her children ; who, born in France,
may, in spite of the recognition by their father in the marriage con-
tract, claim at their majority the quality of French citizens, according
to Article 9 of the Code Napoleon.
These considerations of fact and law have all the greater force and
power because, — according to its object and its results, which are
to repair a fault committed against social order, for the benefit of the
natural child who was the innocent victim of it, to create for this child
a family that he did not have before, and to raise him to the class
and give him the rights of legitimate child, — legitimation by subse-
quent marriage of the parents, like marriage itself, is in France a
question of public order.
It follows that in deciding that Skottove has not conferred upon
his two natural children, born in France in 1851 and 1852, by his
subsequent marriage with their mother celebrated in France October
26, 1853, the benefit of legitimation, and that accordingly the gift
inter vivos made by him to Mrs. Farrand, July 4, 1836. was not re-
voked and should be executed, the judgment from which appeal was
taken expressly violates Articles 331 and 960 of the Code Napoleon.
Judgment set aside. 1
1 Ace. Joly v. Perkins (Rouen, 1887), 14 Clunet, 183. See Skottowe v. Young,
L. R. 11 Eq. 474. — Ed.
SECT. IV.] ANONYMOUS. 141
ANONYMOUS.
Court of Appeal, Athens. 1893.
[Reported 21 Ctunel, 592.]
The Court. The recognition of a natural child by a Greek in
foreign parts is not governed by the laws of the country where the
recognition takes place, but by the law of the father's country. The
application of the French law, made in the court below according to
Article 4 of the Greek Civil Code because the mother was French, is
not in conformity with law ; for in the recognition it is the father who
contracts the relation from which are deduced all the rights of the
recognized child. The validity of the recognition made by a Greek
in a foreign country should be judged in the same way as if the act
had been done in Greece ; in short, according to the Greek Civil Code,
Article 4 : •• Marriage and the relations between parents and children
are ruled for a Greek residing in a foreign country by the Hellenic
law." This solution is also in conformity with the general rule that
paternity and filiation are governed by the statute personal (or by the
principle of nationality) of the father; this rule is accepted by all
nations in the world. The principles we have laid down are professed
by very eminent authors (Foelix, Droit intern. I. p. 79 ; Pasquale
Fiore, Droit international prive, p. 239 ; von Bar, Internationales
Privatrecht, II. p. 183).
If recognition were not an institution existing in Greece, a Greek
could not make a recognition even in a foreign county, since, accord-
ing to Article 8 of the Greek Civil Code, the Greek courts cannot take
account of institutions which are not admitted by Greek law. Accord-
ing to this solution are the English decisions, which provide that an
Englishman cannot recognize a natural child even in a foreign country,
whilst a foreigner may recognize a natural child in England provided
he can do it by the law. of his country. Recognition is not met with
in the Roman law, but it is admitted in principle by the modern Greek
law (Greek Civil Code, Art. 65). The proof of foreign laws, when
they are denied, is obligatory upon the court ; consequently the court
of first instance, in deciding that it might order the proof of foreign
law, if it deemed it necessary, but that it was not bound to do so,
falsely interpreted the law of procedure.
The recognized child is French, since before the recognition she
married a Frenchman; the French nationality thus acquired cannot
be lost by effect of the recognition which without the marriage would
have made the child Greek.
The recognition of the plaintiff is to be regarded legal if the act of
recognitionwhich she alleges was done in conformity with the French
law at Toulon. It is true that the validity of the recognition and the
capacity of the father arc judged by the Hellenic law ; hut the external
142 ANONYMOUS. [cHAP. VI.
forms of recognition are governed by the law of the country where the
recognition takes place (Greek Civil Code, Art. 60, where is found
the special rule that acts of civil status recorded in a foreign country
by competent magistrates according to the forms in use in that country
may be effectually proved).
For the rights of inheritance of the recognized child it is necessary
to turn to the law which regulates intestate succession to a Greek
citizen ; now according to Article 5 of the Greek Civil Code, testa-
mentary or intestate succession is regulated by the law of the nation
of the deceased, and consequently we must apply Greek law as well
for the capacity of the heir as for the extent of his right. The Hel-
lenic law does not regulate the rights of a recognized child to his
father's property ; one cannot apply the provisions as to legitimated
children, because legitimation has for its purpose to make a legiti-
mate child of a natural child, while recognition simply constitutes a
vinculum juris between father and child. Besides, if recognition gave
the recognized child all the rights of a legitimate child, the provisions
for legitimation would be superfluous. All modern legislation govern-
ing the rights of recognized children has given them not the same
rights of succession as those of legitimate or legitimated children, but
narrower ones. For this reason the rights of succession of recognized
children should be regulated according to the dispositions of the Roman
and Byzantine law relative to liberi naturales (ex eoncubina, in the
strict sense of the word). According to the Novels, 18 cap. V. and
89 cap. XII., infants born of a concubine succeed in default of legiti-
mate children, either with their mother or alone to the sixth part of
their father's goods. These provisions have not been in force since
Leo, Emperor of Byzantium, abrogated concubinage as a legal union ;
but though the provisions are abrogated for children born of a con-
cubine, they remain in full force for recognized children, since the
modern legislator in 1856 had the intention (which was not, to be
sure, expressly formulated in the law) of applying the provisions to
natural children. 1
i Ace. 16 Clunet, 676 (Marseilles, 26 Jan. '89). —Ed.
SECT. L] DUNCAN V. LAWSON. 14'
CHAPTER VII.
RIGHTS OF PROPERTY.
SECTION I.
THE NATURE OF PROPERTY.
DUNCAN v. LAWSON.
Chancery Division. 1889.
[Repotted 41 Chancery Division, 394.]
Kay, J. 1 The opinion of the court is required by the Court of Ses-
sion in Scotland, which has approved and remitted to this court a case
under the Act 22 & 23 Vict. c. 63. Upon several of the matters sub-
mitted no doubt can be entertained. One question of considerable
interest has been argued.
The question arises under a Scotch will — more properly a trust dis-
position and settlement — of David Gavin Hewit. He was a domiciled
Scotchman, and possessed freehold and leasehold estate in England.
He gave all his real and personal property to trustees, with power to
convert, and directed them to pay certain pecuniary legacies to chari-
itics in England and Scotland. And ho disposed of the ultimate resi-
due of his trust estate, on failure of his issue, among certain specified
charities.
The validity of these gifts, so far as they are payable out of the pro-
ceeds of English freehold or leasehold property, must depend on the
lex loci rei sitce, which in England renders charitable gifts by will of
real or leasehold property void. The contest arises upon the question
who are to take the English property which would have gone to satisfy
these bequests. The pecuniary legacies in an English will so framed
would, so far as they failed, fall into and increase the residue. The
gifts of residue, so far as they failed, would he undisposed of and de-
volve as upon an intestacy. This, as all the residue is divided among
charities, would not alter the quantity of property undisposed of.
There is no doubt as to the devolution of the English freeholds so
fir as undisposed of by the will. These, or the proceeds of any con-
verted under the will, would descend as real estate, and would belong
1 The opinion only is given. — Ed.
144 DUNCAN V. LAWS ON. [CHAP. VII.
to the testator's heir-at-law at the time of his death, assuming that the
testator had acquired them as a purchaser and not by inheritance. See
3 & 4 Will. IV. c. 106.
The question which has been argued is whether the next of kin of
the testator according to English or Scotch law are entitled to the un-
disposed of leaseholds or the proceeds thereof. Mob'rfia sequuntur per-
sonam • and the law of the domicil undoubtedly regulates succession
to movable property ; but the reason for this is that movables have
no locality in law. It is argued that the leaseholds undisposed of, al-
though immobilia, belong to the executor, who would be bound to deal
with the beneficial interest in them as with other undisposed of personal
estate, treating them as personal property by the lex loci, and there-
fore dealing with the beneficial interest in mobilia and these immobilia
in the same way ; and that accordingly the beneficial interest must de-
volve according to the law of the domicil. But the lex loci governs the
devolution of immobilia in case of intestacy, just as it does of freehold
property. There is no possibility of doubt that, if the Scotch heir and
the English heir were different persons, the English heir and not the
Scotch heir would take the undisposed of freeholds in England. The
executor is merely the hand to effect the distribution of personal estate.
As to the persons entitled under the distribution to succeed to the un-
disposed of leaseholds, the lex loci must govern, or it would practically
have no effect at all. The matter is more clear if you take the case of
an absolute intestacy, where no executor has been appointed. As to
English leaseholds, the Probate Court in England would in that case be
called on to appoint an administrator. No doubt such administrator
would be chosen from the next of kin according to English law, and it
would be his duty, subject to the satisfaction of the testator's debts,
probate duty, and the like, to distribute the leaseholds among the per-
sons entitled. At this stage of the proceeding the lex loci must deter-
mine, independently of the testator's domicil, to whom such distribution
must be made.
Such authority as there is upon the subject is in favor of this view.
In Ereke v. Lord Carbery, Law Rep. 16 Eq. 461, 466, where an Irish
testator bequeathed, amongst other property, a leasehold house in
London upon trust to accumulate the rents, Lord Selborne held that
the Thellusson Act applied, although it is not operative in Ireland. 1 In
answer to the argument that, according to the lex loci, leaseholds in
London are personal estate, and therefore come within the rule mobilia
sequuntur personam, Lord Selborne said: "When ' mobilia' are in
places other than that of the person to whom they belong, their acci-
dental situs is disregarded, and they are held to go with the person.
But land, whether held for a chattel interest or held for a freehold in-
terest, is in nature, as a matter of fact, immovable and not movable.
The doctrine is inapplicable to it."
1 Contra, Despard v. Churchill. 53 N Y. 192. —Ed.
SECT. I.] MCCOLLUM V. SMITH. l45
In the Goods of Gentili. I. R. 9 Eq. 541 a married woman domi-
ciled in Italy died there possessed of leaseholds in Ireland Hex hus-
band, who survived her, was only entitled by Itahan law to a united
h 2est in these leaseholds, but by the law of Ireland *£*£*£
was entitled absolutely. It was held that the grant of administration
fou d be unqualified. In the very lucid and able judgmen in ha
case Freke .Lord Carbery is referred to as a distinct authority » that
the succession to chattels real depended on the lex foci,' which the
learned judge states to be his own opinion also.
ffis Lordship then answered in detail the several questions pro-
pounded for the opinion of the court, and expressed the opinion that
Z persons entitled to take the sums which would have gone to «
the charitable bequests, so far as they were payable out of English
freehold and leasehold estates, if such bequests had not been invalid
were, as to the leasehold property or the proceeds thereof, the persons
entitled to the testator's personal estate according to the English stat-
ute of Distributions. 1
1838.
McCOLLUM v. SMITH.
Supreme Court of Tennessee.
[Reported Meigs, 342.]
Green J 2 The complainants, Zilla and Sally, are the children of
the defendant, by his former wife Tamsey. Tamsey was the daughter
of John DooM, of Louisiana, who died in that State, possessed of con-
siderable estate, about the first of December, 1815. M». Smith and
her husband, the defendant, lived in Tennessee, where she died in Feb-
ruary 1816, before any measures were taken to obtain her share of her
f-ither's estate. Her only children surviving her were the complainant,
Zilla, wife of McCollum, and Sally, wife of Reid, and William Salsbury,
a son bv a former husband. William Salsbury died in November, 1826,
without lawful issue, leaving his sisters, Zilla and Sally his on y heirs
and distributees. The defendant. Smith, obtained Ins wife s portion of
her father's estate in Louisiana, and was guardian o William Salsbury
whose estate went into his hands. This bill is brought by his danghteis
and their husbands for an account of each of these funds 1 he princi-
pal question in this cause is, whether negroes are to be regarded m
Louisiana as real estate or personal. For it is not disputed on eithei
side, but that if personal, the law of Mrs. Smith's domic, .will govern
and if real, the law of the place where it was situated will control the
succession. Story, Conf. L.. §§ 481, 183.
By the law of Louisiana, real estate and immovable things are con-
i Ace. Monteith v. Monteith, 9 Sees. Caa. ( tth Series) 982, - Ed.
2 p ar i of the opinion only is given. - En
VOL. II. — 10
146 MCCOLLUM V, SMITH. [CHAP. VII.
vertible terms. Dig. 1808, b. 2, c. 2, art. 13. And that law, art. 19,
contains the following provision in relation to slaves: " Slaves in this
territory are considered immovable by the operation of law, on account
of their value and utility for the cultivation of the lands, and therefore
the} - may be mortgaged." The chapter from which this extract is made
treats only of immovable things, enumerating what are such and in
what sense ; whether by their nature, or by operation, or destination of
law ; and commences with the words, " Real estate or immovable tilings
are," etc., thereby substituting the terms, " immovable things," for
-- real .estate." Story's Conf. L., § 447, says, "That in addition to
those things which may be deemed universally to partake of the nature
of immovables, or, as the common law phrase is, to savor of the realty,
all other things, though movable in their nature, which by the local law
are deemed immovables, are in like manner governed by the local law.
For every nation, having authority to prescribe rules for the disposition
and arrangement of all property within its own territory, may impress
upon it an}* character which it shall choose, and no other nation can
impugn or vary that character." If these principles be correct, they
settle the question ; for Louisiana has said, by its law, that slaves are
immovable, and having a right to impress upon them any character it
may choose, which Tennessee has no right to impugn or vary, it follows
that the law of Louisiana must govern the succession.
It is earnestly argued that this language of Judge Story must be re-
stricted in its meaning to such things, movable in their nature, as are
by law attached to the land, and are thus made to savor of the realty.
This is plainly a misconstruction of the author ; for he says, expressly,
that in addition to the things that are universally considered to savor
of the realty, " all other things, though movable in their nature,
which by the local law are deemed immovables, are in like manner
governed by the local law ; " thus plainly intending to assert the power
of a nation to impress any description of property with the character of
" immovable," whether connected with land or not.
But it is insisted that no State has a right to do this : and thus give
to property, movable in its nature, a destination different from that
which by the law of nations would be given to it were there no such
local law. If this argument be well founded, the power by law to
attach movable property to the freehold, and thus constitute a part of
it, would be equally beyond the competency of a State. Is it not as
easy to declare, in an act of assembly, that horses for the plow shall
constitute part of the freehold, and thus make them immovable, as to
announce simply that horses shall be immovable property ? It is cer-
tainly difficult to perceive upon what principle the competency to enact
the former provision can be maintained, while the power to make the
latter is denied. And yet the power to attach, by law, things in their
nature movable to the freehold, and thus make them immovable, is not
denied in the argument ; and, indeed, could not be, for the common law,
as well as the civil law, recognizes some things movable in their nature
SECT. I.] MCCOLLUM V. SMITH. 147
as part of the freehold. This right to impress upon movable things the
character of immovables does not depend upon their relation to the
freehold, but results from the power inherent in every nation " to pre-
scribe rules for the disposition and arrangement of all property within
its own territory." When this shall be done the law applicable to im-
movables governs the disposition which roust be made of such property.
It is insisted that the law of Louisiana referred to was not made with
a view to the succession, but that, as only immovables are there subject
to mortgage, slaves, on account of their value, were impressed witli the
character of immovable with the view only of making it lawful to mort-
gage them. This is evidently a misconstruction of the law. It is true
that, after announcing that slaves are immovable property, it is added
in the digest of 1808, "and therefore they may be mortgaged." But
this is stated as a mere consequence, or incident, resulting from the
character with which the property had been impressed by law. The
chapter is not treating of mortgage or securities, but of the character of
propert\*, defining what things are immovable in contradistinction to
movable things. To put it beyond doubt that such is the true con-
struction of this article, it will be perceived by reference to the Civil
Code of Louisiana of 1825, b. 2, tit. 1, c. 2, art. 4G1, that the words
"and therefore they may be mortgaged," are omitted altogether. The
language of that article is: " Slaves, though movable by their nature,
are considered as immovables by operation of law." Thus we have a
legislative construction of the article in question, removing all doubt.
These principles having been established, let us apply them to the
case under consideration. We have seen that John Dodd died in
Louisiana in 1815. His daughter, Tamsey, wife of the defendant
Smith, him surviving, then resided in Tennessee, where she died in
1816. In relation to immovable property, the descent and heirship is
exclusively governed by the law of the country within which it is actu-
ally situate. " No person can take except those who are recognized as
legitimate heirs by the laws of that country ; and they take in the pro-
portions and order which these laws prescribe." " This," says Judge
Story, "is the indisputable doctrine of the common law." Conf. L.,
§ 483. By the law of Louisiana, Dig. Civ. Code, b. 3, tit. 1, c. 2,
§ 2. art 27, p. 150, when a man dies all his legitimate children "par-
ticipate to his succession by equal shares."
John Dodd had live children, of whom Mrs. Smith was one, so that
she became entitled to one fifth of all her father's estate. This vested
in her as paraphernal property ; and as the law of Louisiana governs, as
to the land and negroes, being immovables, that portion of the estate
was held by her independently of her husband, of which sin: had the
administration and enjoyment. Civil Code La. 384. This property
remained undisposed of and undivided, until after the death of Mis.
Smith in 18 HI. Upon her death, by the law of Louisiana, the succes-
sion to all her property in that State is participated by her children.
But as that law governs only as t<> 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<l. 453,12 N. E.308; Robinson v. Queen, 87
Tenn. 445; Shattuck v. Bates, 92 Wis. 638, 66 X. W. Tor,. But Bee Gates '-. Gaither,
46 La. Ann. 286, If. So. 50.
Conversely, a deed good according to the law of the Bitus constitutes a good con-
veyance, though it is not good according t" the law of the place of making. Post a
152 CAMPBELL V. COON. [CHAP. VII.
CAMPBELL v. COON.
Court of Appeals, New York. 1896.
[Reported 149 New York, 556.]
Gray, J. 1 The learned judges of the General Term below have
reversed the judgment recovered by these plaintiffs in their action for
the foreclosure of a mechanic's lien and have ordered a dismissal of
the complaint, upon the ground, as we find in the opinion, tbat " the
right to a lien pursuant to the provisions of the Mechanics' Lien Law
(Chap. 342, Laws of 1885), does not extend to contracts made and to
be performed out of this State." I think that their conclusion was
erroneous, and that a consideration of the case fails to disclose any
ground for the reversal of the plaintiff's judgment. It appears from
this record, following the findings of facts, that the defendant, Amalie
Coon, contracted with the Vanderbeck Iron Work Company, a cor-
poration created by the laws of the State of New Jersey, to furnish and
erect the iron work in a certain building she was about constructing in
the city of New York. That company then made a contract with the
plaintiffs, who were also residents of the State of New Jersey, by
which the latter agreed to make certain iron lintels and iron separators,
at an agreed price and in accordance with the contract between the
company and Mrs. Coon, and to deliver the same to the Iron Work
Company "at and for the building" in question. The plaintiffs per-
formed their agreement, and the materials called for in their agreement
were delivered to the Iron Work Company ' ' at the city of Hoboken in
the State of New Jersey and at No. 368 Greenwich Street in the city
of New York" (that being the place where the building was being
erected), and all of them " were actually used in the construction of
the building with the knowledge and consent " of Mrs. Coon. It is
perfectly clear, therefore, in the first place, that under their contract
the plaintiffs were required to deliver the materials, which they had
agreed to furnish to the Iron Work Company, " at and for the building
in the city of New York," and, in the second place, that those materials
were actully used in its construction, and is there any satisfactory
reason for denying to them the protection of the statute because the
contract or agreement was one made without the State and between
First Nat. Bank, 138 111. 559, 28 N. E. 978; Manton v. Seiberling, 107 la. 534, 78
N. W. 194; Succession of Larendon, 39 La. Ann. 952, 3 So. 219; Antonelli v. de la
Palmira (French Cassation, 2 Apr. 1884), 12 Clunet, 77.
So the validity of a conveyance is determined by the lex rei sitce. Moore v. Church,
70 la. 208 ; Goddard v. Sawyer, 9 All. 78 ; Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713.
So of the nature and extent of the interest conveyed, and the state of the title as a
result of the conveyance. McGoon v. Scales, 9 Wall. 41 ; Glover v. U. S. 29 Ct. CI.
236; Danner v. Brewer, 69 Ala. 191 ; Brouson v. St. Croix Lumber Co., 44 Minn. 348,
46 N. W. 570. — Ed.
1 Part of the opinion is omitted. — Ed.
SECT. II.] CAMPBELL V. COON. 153
non-residents of the State? I see no reason for so narrowly constru-
ing the provisions of the Mechanics' Lien Law. By its terms " any
person" may have a lien, who shall haw furnished any materials,
which have been used in the erection of any building within any of the
cities or counties of this State. Undoubtedly, the statute has no extra-
territorial force, and was intended for the protection of those -furnish-
ing materials within this State ; as it was held by this court in the case
of The Birmingham Iron Foundry v. The Glen Cove Starch Manufac-
turing Company, 78 N. Y. 30, a ease cited, and relied upon, in the
opinion of the General Term. The facts, however, in that case were
quite other than those before us. There, the defendant, a New York
corporation, ordered the construction of a steam engine by the Wood-
ruff Company, a Connecticut corporation, and the bed plate for the
engine the Woodruff Company ordered of the plaintiff, also a Con-
necticut corporation. Under the contract between the defendant and
the Woodruff Company, the engine was to be delivered to the defend-
ant at Hartford, in the State of Connecticut, and the bed plate for the
engine, under the sub-contract with the plaintiff, was also to be deliv-
ered at that city. The delivery of the engine, complete, was in fact
made to the defendant at Hartford and the defendant brought it into
this State and to its factory. Under these circumstances, it was very
properly decided, inasmuch as when the engine was brought into this
State it belonged to the defendant, that the plaintiff " furnished no
materials in this State," and, therefore, could not claim the benefit
of the statute. In this case the fact was, and such was the finding by
the referee, that under the plaintiffs' agreement they were to deliver
the materials at and for the building in New York City, which the
defendant was to put up, and they performed their agreement in that
respect and their materials were actually used in its construction.
In the opinion of the General Term, stress is laid upon the tact that
no place of payment was specified, and it was reasoned that because the
State, wherein the contract was made and the contracting parties re-
sided, was in legal contemplation the place for payment, no right could
be deemed to exist under the statute entitling the plaintiffs to a lien
upon the building for their security. That proposition again assumes
for the statute a purpose which, in our judgment, is not conveyed by
its language. The operation of the Mechanic-' Lien Law does not
depend upon such incidents of the contract with the materialman as
relate to its character, or to the place of payment; but solely upon the
fact that the materialman has performed labor upon, or furnished ma-
terials to, any building within the Si; ( te. The very case to which the
General Term opinion refers, and which we have cited above, rested,
in its decision, upon the fact that the plaintiff had really furnished no
materials in this State. The language of this acl is very broad and we
perceive no limitation in its language, nor any good reason for reading
one into it, by which the mechanic is required to be a resident of the
State and to make his contract here. The materials must have been
154 CAMMELL V. SEWELL. [CHAP. VII.
furnished and used in the erection of a building within a city or county
of this State and, when that is the case, the right of the materialman
to a lien follows, if the provisions of the statute are otherwise complied
with. 1
yr
SECTION III.
MOVABLES.
CAMMELL v. SEWELL.
Exchequer Chamber. 1860.
[Reported 5 Hurl stone $• Norman, 728.]
Trover for deals, with a count for money had and received. At the
trial a verdict was taken for the plaintiffs, subject to a special case,
which was substantially as follows. The plaintiff's were underwriters
at Hull ; the defendants merchants in London. The action was brought
to recover part of a cargo of deals shipped on board the Prussian ship
"Augusta Bertha" at Onega, in Russia, by the Onega Wood Com-
pany, for Messrs. Simpson & Whaplate, of Hull, and by them insured
with the plaintiffs. The plaintiffs had paid Messrs. Simpson & Wha-
plate as for a total loss.
The " Augusta Bertha " having put into Haroe Roads, in Norway, in
consequence of the shifting of her deck cargo, drove from her anchor-
age on the rocks at Smaage, about three miles from Molde. The cargo
was discharged and the vessel abandoned, and the master sold the
cargo by auction (against the protest of the representative of the con-
signees) to one Hans Clausen, who consigned them to the defendants.
The cargo was sold by the defendants for an amount greater than the
insurance money paid by the plaintiffs.
By the law of Norway, the sale by auction passed a good title to the
purchaser, even if the master, as between himself and the owners, was
acting wrongfully. The representative of the consignees instituted a
suit in the Superior Diocesan Court of Trondjhem to set aside the sale ;
but the court confirmed the sale.
The Court of Exchequer ordered the verdict for the plaintiffs to be
1 Ace. Thurman v. Kyle, 71 Ga. 628 ; U. S. In v. Co. v. Phelps & Bigelow W. M.
Co., 54 Kan. 144, 37 Pae. 982; PuJlis Bros. Iron Co. v. Natchitoches, 51 La. Ann.
1377, 26 So. 402.
So generally the extent of a creditor's rights to enforce payment out of the debtor's
land is determined by the lex rei sitcz. Harrison v. Harrison, L. R. 8 Ch. 342 ; McGoon
v. Scales, 9 Wall. 23 ; Brine v. Ins. Co., 96 U. S. 627 ; Whipple v. Fowler, 41 Neb.
675,60 N. W. 15. -Ei>.
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, </r testator, and the term <>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. . . .
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