Divorce.

Real property.
Lex Loci rei

sitæ.

Wills.

Lex Loci as to crimes.

there was a tacit subjection of both parties to the law of their habitation, which ought therefore to be enforced afterwards. A new law might place the wife in a worse condition than she had expected at the time of marriage:" see Story, Conf. Laws, ss. 145-199.

As to divorce, this is governed generally by the law of domicile: Lolley's Case, 1 Russ & Ry. C. C. 236; Warrender v. Warrender, 9 Bligh, 122; Tovey v. Lindsay, 1 Dow. 117; M'Carthy v. De Caix, 2 Russ. & M. 614; Conway v. Beazley, 3 Hagg. Ecc. R. 639; Argent v. Argent, 34 L. J. Prob. 133; Story, Conf. Laws, chap. 7.

With respect to real property, the lex loci rei sita universally prevails: Sill v. Worswick, 1 H. Bl. 666; Doe d. Birtwhistle v. Bardill, 5 B. & C. 438; Tulloch v. Hartley, 1 Y. & C. 114; Brodie v. Barry, 2 Ves. & B. 127; Coppin v. Coppin, 2 P. Wms. 291; Curtes v. Hutton, 14 Ves. 537; Warrender v. Warrender, 9 Bligh, H. L. 127; Story, Conf. Laws, ss. 365-428.

"The right to land in Chili must, no doubt, be determined by their laws; but a contract entered into between three English gentlemen, two of them domiciled and residing in England, and the third residing in Chili, but not having acquired a foreign domicile, must, I think, be governed and construed by the rules of English law": per Sir J. Romilly, M.R., Coad v. Coad, 33 L. J. (Ch.) 278.

In Frith v. Wollaston, 7 Ex. R. 194, Parke, B., said: "At all events it seems to be clear that the law of the Cape of Good Hope cannot be taken to affect the debtor's real estate out of that country, which, being extra-territorial, is also out of the jurisdiction of the Court where the judgment was obtained."

Wills of personalty are governed by the law of the domicile of the party at the time of the execution, but wills of realty, as to the mode of transfer, by the lex loci rei sitæ: Brodie v. Barry, 2 Ves. &. B. 127; Price v. Dewhurst, 8 Sim. 279; 4 Myl. & Cr. 76, S. C.; Moore v. Darell, 4 Hagg. Ecc. R. 346; Trotter v. Trotter, 4 Bligh (N.S.) 502; Story, Conf. Laws, s. 479 a.

As regards criminal law: "The lex loci must needs govern all criminal jurisdiction, from the nature of the thing, and the purpose

of that jurisdiction:" per Lord Brougham, in Warrender v. Warrender, 9 Bligh (N. S.) 129. "It has been generally understood that whenever a crime has been committed, the criminal is punishable according to the lex loci of the country against the law of which the crime was committed:" per Heath, J., Mure v. Kaye, 4 Taunt. 43. This does not mean that in one country an offender can be punished for a crime committed in another, and that the trial must be had in the first country according to the law of the latter country, but only that by the comity of nations he should be surrendered. In Keighley v. Bell, 4 Fost. & Fin. 790, Willes, J., said: "It is the general rule and principle of law that crime is local in its trial, and that offences are to be tried where they are alleged to have been committed - a principle of universal application."

-a

The lex fori applies to all modes of enforcing rights, and Lex Fori. governs as to the nature, extent, and character of the remedy, including Statutes of Limitation and the right of set-off: Imlay v. Ellefsen, 2 East. 453; General Steam Navigation Company v. Guillou, 11 M. & W. 895; British Linen Company v. Drummond, 10 B. & C. 903; Huber v. Steiner, 2 Bing. N. C., 202; De la Vega v. Vianna, 1 B. & Ad. 284; Bhaeechund v. Partabchund Manikchund, 1 Moore, Ind. App. 172; Lopez v. Burslem, 4 Moore, P. C. 300; Her Highness Ruckmaboye v. L. Mottichund, 8 Moore, P. C. 4. Where a foreign statute of limitation not merely limits the remedy, but extinguishes the debt after the period of limitation has expired, it appears to be equivalent to a release, and to prevent an action in this country: Donn v. Lippman, 5 Cl. & F. 1; and see per cur. in Huber v. Steiner, 2 Bing. N. C. 211.

In Williams v. Jones, 13 East, 439, it was held that, assuming that the English Statute of Limitations, 21 Jac. 1. c. 16, applies to the East Indies (as it does: see Her Highness Ruckmaboye v. L. Mottichund, 8 Moore, P. C. 4), a plaintiff's right of action is not barred if he commences the action in this country within six years after the defendants return home, although more than six years have elapsed since the cause of action occurred in India, the defendant having remained there during that period. Lord Ellenborough asked in that case: "How is the plaintiff to be divested of

Where Lex

Fori conflict.

this right by a charter which the King was empowered by statute to grant for the purpose of erecting courts of judicature in India?" With reference to the priority of creditors and distribution of assets the lex fori prevails: Simpson v. Fogo, 32 L. J. (Ch.) 249.

If the exemption from arrest and imprisonment enters into and forms an essential ingredient in the original contract by the law of the country where it is made, and is not merely contingent on the failure of the debtor to perform his obligations, it has been held that it cannot be enforced. Thus it was decided that an ordinary debt contracted in France, where the contrainte par corps is limited to commercial debts, could not be enforced by personal arrest in this country: Melan v. The Duke of FitzJames, 1 Bos. & Pul. 138. But this case is doubtful: see Imlay v. Ellefsen, 2 East, 453; De la Vega v. Vianna, 1 B. & Ad. 284; Voet, Comm. ad Pandect, lib. ii. tit. 4, s. 45.

And if a positive law intervenes in the country where the action is brought, affecting the subject-matter of the contract, the lex fori must be applied, although in effect it alters the terms of the contract. Thus, if a rate of interest were claimed upon a loan which, although legal in the place where the contract was made, was illegal by the usury laws in the place where the action to recover it is brought, the Court would decide against the claim: Story, Conf. Laws, s. 374. But compare ss. 303-5.

Jurists have laid it down that when the lex loci contractûs and

Loci and Lex the lex fori come into collision, as to conflicting rights acquired under each, the comity of nations must yield to the positive law of the land: Kent, Com. ii. 461 (3rd edit.); Story, Conf. Laws, s. 327. In Potter v. Brown, 5 East, 131, Lord Ellenborourgh, C.J., said: "We always import together with these persons the existing relations of foreigners as between themselves according to the law of their respective countries, except indeed where those laws clash with the rights of our own subjects here; and one or other of the laws must necessarily give way, in which case our own is entitled to the preference."

In an action brought in this country for an assault committed at Naples, the defendant pleaded, that according to the law of Naples he was liable to certain penal proceedings in consequence of the trespass, and that by that law no civil action could be maintained

until after he had been found in such penal proceedings, and that no such proceedings had been instituted; but the Court said: "We think this furnishes no defence. It is a matter of procedure which was to be governed by the lex fori:" Scott v. Lord Seymour, 31 L. J. (Ex.) 457; affirmed in Error, 32 L. J. (Ex.) 61. But upon the question whether, if, by the Neapolitan law, no damages had been recoverable at law for such an assault, the action would be maintainable here, the Court of Error differed in opinion. Wightman, J., thought that a British subject would not be deprived of his right to sue here by such a foreign law; but Williams, J., said, that he was not prepared to assent to this; Compton, J., thought it a matter of very great difficulty and doubt; and Blackburn, J., said, that his mind was far from made up on the question, but he doubted very much whether such a plea would be a good bar. In a recent case the Judicial Committee said that it was alike contrary to principle and authority to hold that an English court of justice would enforce a foreign municipal law, and give a remedy in the shape of damages in respect of an act which according to its own principles imposes no liability on the person from whom the damages are claimed: The Halley, L. R. 2 P. C. 204.

In a case of collision on the high seas between a foreign and a British vessel, Dr. Lushington held that the Merchant Shipping Act, 1854, which limits the liability of owners in damages to the value of ship and freight, does not apply where the foreigner is defendant: The Wild Ranger, 32 L. J., P. M. & Adm. 49. And the Judicial Committee, reversing a decision of the Court of Admiralty, have determined that in an action founded on a tort committed in the territory of a foreign State (it was the case of a collision in Belgian waters), the party suing in a British court is not entitled to the benefit of the foreign law against the provisions of the statute law of England: The Halley, L. R. 2 P. C. 193.

CHAPTER IX.

ON ALLEGIANCE AND ALIENS.

(1.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on the question of Alienage, and Trading with Her Majesty's Enemies. 1703.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-On consideration of the case of Manasses Gillingham, who (being a natural-born subject of her Majesty, but a settled inhabitant in the island of St. Thomas, belonging to the King of Denmark, and naturalized there) traded from thence to and with the Spaniards, in war with her Majesty; I am of opinion, his being naturalized without the license of her Majesty will not discharge him from the natural allegiance he owes to her Majesty; however, he being a settled inhabitant in the island of St. Thomas, under the King of Denmark, and not having been commanded to return into her Majesty's dominions, as he might have been, though naturalized there, his trading with the Spaniards from that island, in amity with the Danes, will not be a capital, if any offence at all; and therefore I cannot advise the proceeding against him criminally for such trading. If any inconvenience happens from such trading, as is suggested by the Governor of Barbadoes' letter, the Queen's subjects may be recalled to return to her Majesty's dominions; and if they refuse, and after trade with her Majesty's enemies, they may be proceeded against criminally for such trading, as any of her Majesty's subjects residing in her plantations may be proceeded against for trading with her Majesty's enemies-that is, for a misdemeanor; for I do not take simple