« ՆախորդըՇարունակել »
according to the circumstances. It is the duty of every government to protect its own citizens in the recovery of their debts and other just claims; and in the case of a solvent estate it would be an unreasonable and useless comity to send the funds abroad, and the resident creditor after them. But if the estate be insol. vent, it ought not to be sequestered for the exclusive benefit of the subjects of the State where it lies. In all civilized countries, foreigners in such a case, are entitled to prove their debts and share in the distribution.1
Though the forms, in which a testament of personal Foreign property, made in a foreign country, is to be executed, carried into are regulated by the local law, such a testament cannot effect in be carried into effect in the State where the property country. lies, until, in the language of the law of England, probate has been obtained in the proper tribunal of such State, or, in the language of the civilians, it has been homologated, or registered, in such tribunal.2
So, also, a foreign executor, constituted such by the will of the testator, cannot exercise his authority in another State without taking out letters of administration in the proper local court. Nor can the administrator of a succession ab intestato, appointed er officio under the laws of a foreign State, interfere with the personal property in another State belonging to the succession, without having his authority confirmed by the local tribunal.
The judgment or sentence of a foreign tribunal of competent jurisdiction proceeding in rem, such as the clusiveness sentences of Prize Courts under the law of nations, or sentences Admiralty and Exchequer, or other revenue courts, under the municipal law, are conclusive as to the proprietary interest in, and title to, the thing in question, wherever the same comes incidentally in controversy in another State.
Whatever doubts may exist as to the conclusiveness of foreign sentences in respect of facts collaterally involved in the judgment, the peace of the civilized world, and the general security
1 Kent's Comment. on American Law, 5th ed. vol. ïi. pp. 431, 432, and the cases there cited.
2 Wheaton's Rep. vol. xii. p. 169, Armstrong v. Lear. Code Civil, liv. ïïi. tit. 2, art. 1000.
and convenience of commerce, obviously require that full and complete effect should be given to such sentences, wherever the title to the specific property, which has been once determined in a competent tribunal, is again drawn in question in any other court or country.
Transfer How far a bankruptcy declared under the laws of one of property
country will affect the real and personal property of reign bank- the bankrupt situate in another State, is a question of rupt proceedings. which the usage of nations, and the opinions of civilians, furnish no satisfactory solution. Even as between coördinate States, belonging to the same common empire, it has been doubted how far the assignment under the bankrupt laws of one country will operate a transfer of property in another. In respect to real property, which generally has some indelible characteristics impressed upon it by the local law, these difficulties are enhanced in those cases where the lex loci rei sitæ requires some formal act to be done by the bankrupt, or his attorney, specially constituted, in the place where the property lies, in order to consummate the transfer. In those countries where the theory of the English bankrupt system, that the assignment transfers all the property of the bankrupt, wherever situate, is admitted in practice, the local tribunals would probably be ancillary to the execution of the assignment by compelling the bankrupt, or his attorney, to execute such formal acts as are required by the local laws to complete the conveyance.]
The practice of the English Court of Chancery, in assuming jurisdiction incidentally of questions affecting the title to lands in the British colonies, in the exercise of its jurisdiction in personam, where the party resides in England, and thus compelling him, indirectly, to give effect to its decrees as to real property situate out of its local jurisdiction, seems very questionable on principle, unless where it is restrained to the case of a party who has fraudulently obtained an undue advantage over other creditors by judicial proceedings instituted without personal notice to the defendant.
But whatever effect may, in general, be attributed to the assignment in bankruptcy as to property situate in another State,
1 See Lord Eldon's Observations in Selkrig v. Davies, Rose's Cases in Bankruptcy, vol. ii. p. 311. Vesey's Rep. vol. ix. p. 77, Banfield v. Solomon.
it is evident that it cannot operate where one creditor has fairly obtained, by legal diligence, a specific lien and right of preference, under the laws of the country where the property is situate. (a)
1 Kent's Comment. on American Law, vol. ii. pp. 404-408, 5th ed.
(a) [" In this country there is some diversity of opinion among the State courts, whether a bankrupt law, in regard to personal property, has an extraterritorial operation. That it has such operation is a doctrine which seems to be well settled in England by numerous decisions.
“It is held in England, that an assignment of personal property under the bankrupt law of a foreign country passes all such property and debts owing in England; that an attachment of such property by an English creditor, with or without notice, after such an assignment, is invalid. And the doctrine is there established, that an assignment under the English bankrupt law transfers the personal effects of the bankrupt in foreign countries. But an attachment by a foreign creditor, not subject to British laws, under the local laws of a foreign country, is held valid. The principle on which this doctrine rests is, that the personal estate is held as situate in that country where the bankrupt has his domicile.
“ A statutable conveyance of property cannot strictly operate beyond the local jurisdiction. Any effect which may be given to it beyond this does not depend upon international law, but the principle of comity; and national comity does not require any government to give effect to such assignment, when it shall impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this country. A proceeding in rem against the property of a foreign bankrupt, under our local laws, may be maintained by creditors, notwithstanding the foreign assignment.
“ But it is an admitted principle in all countries where the common law prevails, whatever views may be entertained with regard to personal property, that real estate can be conveyed only under the territorial law.
“ This doctrine has been uniformly recognized by the courts of the United States, and by the courts of the respective States. The form of conveyance adopted by each State for the transfer of real property must be observed. This is a regulation which belongs to the local sovereignty.
“ As, under the Constitution, Congress exercised an exclusive jurisdiction over the subject of bankruptcy; the same rule of procedure extended throughout the Union. But the act of Congress could have no extraterritorial effect. Texas was an independent republic at the time of the decree in bankruptcy, and consequently no claim under it, even as regards personal property in that republic, could be made, except on the ground of comity. And on our own principles this could not be done, to the injury of local creditors.
“ It is believed that no sovereignty has at any time assumed the power, by legislation or otherwise, to regulate the distribution or conveyance of real estate in a foreign government. There is no pretence that this government, through the agency of a bankrupt law, could subject the real property in Texas, or in any other foreign government, to the payment of debts. This can only be done by the laws of the sovereignty where such property may be situated.” Howard's Rep. vol. xi. p. 44, Oakley v. Bennett.]
ģ 19. Ex
III. The judicial power of every State may be extent of the tended to all controversies respecting personal rights power over and contracts, or injuries to the person or property, when residing the party resides within the territory, wherever the territory. cause of action may have originated.
This general principle is entirely independent of the rule of decision which is to govern the tribunal. The rule of decision may be the law of the country where the judge is sitting, or it may be the law of a foreign State in cases where it applies; but that does not affect the question of jurisdiction, which depends, or may be made to depend, exclusively upon the residence of the party. Depends
The operation of the general rule of international upon muni- law, as to civil jurisdiction, extending to all persons cipal regu
who owe even a temporary allegiance to the State, may be limited by the positive institutions of any particular country. It is the duty, as well as the right, of every nation to administer justice to its own citizens ; but there is no uniform and constant practice of nations, as to taking cognizance of controversies between foreigners. It may be assumed or declined, at the discretion of each State, guided by such motives as may influence its juridical policy. All real and possessory actions may be brought, and indeed must be brought, in the place where
the property lies; but the law of England, and of other England
countries where the English common law forms the rica. basis of the local jurisprudence, considers all personal actions, whether arising ex delicto or ex contraclu, as transitory; and permits them to be brought in the domestic forum, whoever may be the parties, and wherever the cause of action may originate. This rule is supported by a legal fiction, which supposes the injury to have been inflicted, or the contract to have been made, within the local jurisdiction. In the countries which have modelled their municipal jurisprudence upon the Roman civil law, the maxim of that code, actor sequitur forum rei, is generally followed, and personal actions must therefore be brought in the tribunals of the place where the defendant has acquired a fixed domicile.
By the law of France, foreigners who have established their domicile in the country by special license (autorisation) of the king, are entitled to all civil rights, and, among
others, to that of suing in the local tribunals as French subjects. Under other circumstances, these tribunals have jurisdiction where foreigners are parties in the following cases only:
1. Where the contract is made in France, or elsewhere, between foreigners and French subjects.
2. In commercial matters, on all contracts made in France, with whomsoever made, where the parties have elected a domicile, in which they are liable to be sued, either by the express terms of the contract, or by necessary implication resulting from its nature.
3. Where foreigners voluntarily submit their controversies to the decision of the French tribunals, by waiving a plea to the jurisdiction.
In all other cases, where foreigners not domiciled in France by special license of the king are concerned, the French tribunals decline jurisdiction, even when the contract is made in France."
A late excellent writer on private international law considers this jurisprudence, which deprives a foreigner, not domiciled in France, of the faculty of bringing a suit in the French tribunals against another foreigner, as inconsistent with the European law of nations. The Roman law had recognized the principle, that all contracts the most usual among men arise from the law of nations, ex jure gentium ; in other words, these contracts are valid, whether made between foreigners, or between foreigners and citizens, or between citizens of the same State. This principle has been incorporated into the modern law of nations, which recognizes the right of foreigners to contract within the territorial limits of another State. This right necessarily drays after it the authority of the local tribunals to enforce the contracts thus made, whether the suit is brought by foreigners or by citizens.
The practice which prevails in some countries, of proceeding against absent parties, who are not only foreigners, but have not
i Code Civil, art. 13, 14, 15. Code de Commerce, art. 631. Discussions sur le Code Civil, tom. i. p. 48. Pothier, Procédure Civile, partie i. ch. 1, p. 2. Valin, sur l'Ord. de la Marine, tom. i. pp. 113, 253, 254. Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 1, $1.
? Felix, Droit International Privé, SS 122, 123.