Succes

sonal erty ab tato.

§ 136. Though the distribution of the personal effects sion to per- of an intestate is to be made according to the law of the bintes place where the deceased was domiciled, it does not therefore follow that the distribution is in all cases to be made by the tribunals of that place to the exclusion of those of the country where the property is situate. Whether the tribunal of the State where the property lies is to decree distribution, or to remit the property abroad, is a matter of judicial discretion to be exercised 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 insolvent, 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. (a)

Foreign will, how

effect in

another

country.

§ 137. Though the forms in which a testament of percarried into sonal property, made in a foreign country, is to be executed, are regulated by the local law, such a testament cannot be carried into effect in the State where the property 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. (a)

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 ex 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.

Conclu

§ 138. The judgment or sentence of a foreign tribunal siveness of competent jurisdiction proceeding in rem, such as the sentences of Prize Courts under the law of nations, or Admiralty and Exchequer, or other revenue courts,

of foreign sentences

in rem.

(a) Kent's Comm. on American Law, 5th edit. ii. 431, 432, and the cases there cited.

(a) Wheaton's Rep. xii. 169, Armstrong v. Lear. Code Civil, liv. iii. tit 2, art. 1000.

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 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.

rupt pro

§ 139. How far a bankruptcy declared under the laws Transfer of one country will affect the real and personal property under forof property of the bankrupt situate in another State, is a question of eign bankwhich the usage of nations, and the opinions of civil- ceedings. ians, furnish no satisfactory solution. Even as between co-ordinate 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 sita 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. (a)

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 fraudu

(a) See Lord Eldon's Observations in Selkrig v. Davies, Rose's Cases in Bankruptcy, ii. 311. Vesey's Rep. ix. 77, Banfield v. Solomon.

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)

Extent

over foreigners re

§ 140. III. The judicial power of every State may be cial power 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 tory. of action may have originated.

in the terri

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 Law of the property lies; but the law of England, and of other England countries where the English common law forms the 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.

and America.

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

Proceed

absent par

§ 142. The practice which prevails in some countries, ing against of proceeding against absent parties, who are not only ties. 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.

Distinc

tion 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.