lently 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, 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. (b) § 140. III. The judicial power of every State may be extended to all controversies respecting personal rights and contracts, or injuries to the person or property, when siding with the party resides within the territory, wherever the cause of action may have originated.

Extent

of the judi

cial power over for

eigners re

in the terri

tory.

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.

cipal regu

Depends The operation of the general rule of international upon muni- law, as to civil jurisdiction, extending to all persons lations. 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 countries where the English common law forms the ica. basis of the local jurisprudence, considers all personal actions, whether arising ex delicto or ex contractu, 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 (b) Kent's Comm. on American Law, ii. 404–408, 5th edit.

Law of England and Amer

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 domicil.

French

§ 141. By the law of France, foreigners who have established their domicil in the country by special license law. (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 domicil, 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)

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

(a) Code Civil, arts. 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, Part VI. tit. 7, ch. 1, § 1.

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 draws after it the authority of the local tribunals to enforce the contracts thus made, whether the suit is brought by foreigners or by citizens. (b)91

absent par

ties.

Proceed- § 142. The practice which prevails in some countries, ing against of proceeding against absent parties, who are not only foreigners, but have not acquired a domicil within the territory, by means of some formal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, cannot be reconciled with the principles of international justice. So far, indeed, as it merely affects the specific property of the absent debtor within the territory, attaching it for the benefit of a particular creditor, who is thus permitted to gain a preference by superior diligence, or for the general benefit of all the creditors who come in within a certain fixed period, and claim the benefit of a ratable distribution, such a practice may be tolerated; and in the administration of international bankrupt law it is frequently allowed to give a preference to the attaching creditor, against the law of what is termed the locus concursus creditorum, which is the place of the debtor's domicil.

Distinction between the

rule of de

cision and

rule of pro

ceeding, in cases of contract.

§ 143. Where the tribunal has jurisdiction, the rule of decision is the law applicable to the case, whether it be the municipal or a foreign code; but the rule of proceeding is generally determined by the lex fori of the place where the suit is pending. But it is not always easy to

distinguish the rule of decision from the rule of proceed

(b) Fölix, Droit International Privé, §§ 122, 123.

[91 In the United States, proceedings are not allowed in the way of private suits by citizens against non-residents who are not personally subject to the jurisdiction of the court, and have no property within its control, for the purpose of obtaining a judgment ex parte to establish the debt. If the non-resident has property which can be attached by the process of the court, the citizen may proceed ex parte, after such notice as the statutes require or the courts order, and prove his claim, and satisfy it from the property seized. But the judgment is not conclusive as to the subject-matter of the suit; and usually there are provisions that the plaintiff, before satisfying his claim, shall furnish security to restore the property in case the defendant shall appear within a certain time, and succeed in reversing the judgment. Proceedings in rem rest on a different principle, as they are brought to enforce a right in the thing itself; and the general owner is bound to take cognizance of such demands, and to be prepared to meet them wherever the property may be.]-D.

ing. It may, however, be stated in general, that whatever belongs to the obligation of the contract is regulated by the lex domicilii, or the lex loci contractûs, and whatever belongs to the remedy for enforcing the contract is regulated by the lex fori.92

192 Limitations and Prescription. —A rule simply limiting the time within which proceedings at law may be commenced, is properly called a rule of limitations. Such rules are established by positive enactment, by the legislative power, and are called, in England and America, "statutes of limitations." They rest on the policy of the State, ut sit finis litium; although they are further justified by the presumption that a stale claim is not a valid claim. In the absence of a statute of limitations, rules have been laid down by the courts, as in chancery and admiralty, against stale claims, and the periods of time are usually fixed by analogy to the statutes of limitations in like cases; but, as courts cannot properly enact an arbitrary rule on grounds of public policy, such judicial rules rest on the presumption that the claim is satisfied, or was never valid, and sometimes admit of evidence to rebut the presumption. But the legislative enactments of later times, as now construed by the courts, are absolutely extinctive of a right of action, irrespective of its merits, on general grounds of policy; and an action so barred is not maintainable. Limitations are applied alike to criminal and civil proceedings, and to suits to try the right of ownership or use in corporeal things, whether movable or immovable, as well as to suits on mere personal obligations. Now, as these statutes are rules of repose, resting on the policy of the State, it seems reasonable that any State may apply them to all suits in which the aid of its tribunals is invoked; whether the parties are citizens or aliens; whether the thing in dispute is within or without the territory of the State, and be movable or immovable, corporeal or incorporeal. It is true, that a statute of limitations indirectly operates upon title to property, and has the same effect in aid of the party sued as a defensive prescription, and so it may be argued that they belong to the laws of property and not of mere remedy; but it is impossible, in international law, to be governed by these indirect operations. The tribunal may simply decline to lend its aid to the plaintiff or actor, on the ground of a domestic policy of repose prescribed by the sovereign power; and other nations cannot complain, if no discrimination is made against their citizens.

It has sometimes been said, that the continental writers treat statutes of limitations as part of the law of property and obligations, and therefore not necessarily to be governed by the lex fori. Savigny and Fölix have been adduced as instances. But any language that may be cited to that effect will be found to relate to prescription, and not to mere rules of limitation. Rules of prescription relate directly to ownership, or title in a thing, and are part of the law of property. This is especially the case in the Roman law, and in the systems of those countries whose basis is the Roman law. Prescription, by those systems, is not merely defensive, but creative. As all personal rights in things may be said to originate in occupancy, the Roman law has recognized a possession, begun in a certain manner and continued for a certain time, as creative of a positive title. Such possession does not merely afford presumption of some acts necessary to create title, as of original occupation of a thing unoccupied, or of a transfer from the previous owner, but it is itself a prescribed mode of lawful acquisition. For this reason, it was required to originate bonâ fide and justo titulo; that is to say, the possession must have been begun in an honest belief of a right, justified by an apparently regular proceeding. Without attempting to follow the Roman law from the strict usucapio, through the pretorian edict, to the imperial constitutions, it is enough to say, that such a possession, continued for the appointed time, gave all the

If the tribunal is called upon to apply to the case the law of the country where it sits, as between persons domiciled in that country, no difficulty can possibly arise. As the obligation of the contract and the remedy to enforce it are both derived from the municipal law, the rule of decision and the rule of proceeding must be sought in the same code. In other cases, it is necessary to distinguish with accuracy between the obligation and the remedy.

The obligation of the contract, then, may be said to consist of the following parts:

1. The personal capacity of the parties to contract.

2. The will of the parties expressed, as to the terms and conditions of the contract.

elements of an affirmative title. And these rules respecting creative and defensive prescription belonged to a distinct class from the rules limiting the commencement of actions; and the latter were of less consequence for the protection of rights inherent in things, as the system of prescriptions was so effective for both creative and defensive purposes.

Without attempting to settle the doubts that involve the subject of prescription, in the interesting early history presented by Bracton and Coke, it may be said, that, in the systems of the United States and England, resting on the common law, the titles of parties in possession have been secured rather by limitations of actions, extinctive of remedies by parties out of possession, than by systems of acquisitive prescription. Yet, in the common law, whatever it was originally, and notwithstanding dicta from high authority to the contrary, prescription may be considered as having become limited to incorporeal rights, as of easements or servitudes on land, and to have required an origin adverse to the general title, and to rest upon a presumption of a grant made by the proprietor in derogation of that title. This places it in a very different light from the prescription of the Roman law. In the English and American systems, statutes of limitations furnish a sufficient defence in case of suits brought to assert title to corporeal property, absolute or usufructuary; and, wherever title is involved, and a party must prove his title affirmatively or defensively, the courts allow the possessor the benefit of a prescription analogous to the statute of limitations on the same subject, as a presumption of title.

These considerations show that care must be observed in examining the writings of continental jurists, when treating of limitations and prescription in private international law. And it is thought the result will be found to be, that the law of the forum is to govern when the rule is directly extinctive of remedies, whatever indirect effect it may have on proprietary rights; and that, if the rule invoked is not merely and directly extinctive or prohibitory of the remedy sought, like a statute of limitations, but is a rule applicable to the merits of the case, and part of the law directly governing rights and titles in the subject-matter of the suit, like a usucaption or prescription, then the law of the forum is not to govern, as such; and it becomes an independent inquiry whether a law of that character is to be drawn from the domicil, the situs rei, or the place of the making or executing of a contract.

Savigny, System, liv. viii. 270. Fölix, Droit Intern. Privé, § 100. Story's Conflict of Laws, §§ 576-581. Westlake's Pr. Intern. Law, §§ 250-252. New Am. Cyclopædia, xiii. tit. Prescription. Blackstone's Comm. ii. 263.] — D.