Part II. $ 137. Foreign will, how carried another country. 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 decrec 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 ("). Though the forms in which a testament of personal into effect in 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 (s). 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. (r) Kent's Commentaries on American Law (5th ed.), vol. ii. pp. 431, 432, and the cases there cited. Nelson, Private International Law, pp. 196 et seq. Dicey, Conflict of Laws, p. 682. Wil liams on Executors (9th ed.), p. 1387. (s) Armstrong v. Lear, 12 Wheaton, p. 169. Code Civil, liv. iii. tit. 2, art. 1000. Chap. II. England. If the testator died without leaving any personal property in England, generally speaking, his will need not be proved in any Court of Probate in England (t). But if a foreign executor should Probate of § 137a. find it necessary to institute a suit in this country, to recover a debt wills in due to his testator, he must then prove the will here, or a personal representative must be constituted by the Court of Probate here to administer ad litem (u). The English Court of Probate generally follows the decision of the foreign court, when a will proved abroad also requires probate in England. The Court should, however, be satisfied, either that the will was valid by the law of the testator's domicile, or that a court of the foreign country has acted upon it, and given it efficiency (x). $138. ness of sentences The judgment or sentence of a foreign tribunal of Conclusivecompetent jurisdiction proceeding in rem, such as the foreign sentences of Prize Courts under the law of nations, or in rem. 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 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. $ 138a. The English courts endeavour to uphold all decisions of foreign English and American tribunals, when such decisions have been rightly obtained. Mr. Jusdecisions. tice Story lays down the rule as regards foreign judgments in rem in very explicit terms. He says the judgment is conclusive "when there have been proceedings in rem as to movable property within the juris (t) Williams on Executors, p. 296; Jauncey v. Sealey, 1 Vernon, 397. (u) Williams on Executors, ibid. ; Attorney-General v. Bowens, 4 M. & W. 193; Price v. Dewhursts, 4 M. & Cr. 80. (x) Williams on Executors, p. 298. In the goods of Des Hais, 34 L. J. P. M. Part II. § 139. Transfer of property under foreign bankrupt diction of the court pronouncing the judgment (y). Whatever it settles as to the right or title, or whatever disposition it makes of the property by sale, revendication, transfer, or other act, will be held valid in every other country where the question comes directly or indirectly in judgment before any other foreign tribunal. But this doctrine, however, is always to be understood with this limitation, that the judgment has been obtained bona fide and without fraud; for if fraud has intervened, it will doubtless avoid the force and validity of the sentence (z). So it must appear that there have been regular proceedings to found the judgment or decree; and that the parties in interest in rem have had notice or an opportunity to appear and defend their interests, either personally or by their proper representatives, before it was pronounced; for the common justice of all nations requires that no condemnation should be pronounced before the party has an opportunity to be heard" (a). "We think the inquiry is," said Mr. Justice Blackburn, in giving an opinion in the House of Lords (b), "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 judgment is binding even though it appears that the foreign court based its decision on a mistaken idea of English law (c). usage How far a bankruptcy declared under the laws of one country will affect the real and personal property of the proceedings. bankrupt situate in another State, is a question of which the of nations, and the opinions of civilians, 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 (y) Rose v. Himely, 4 Cranch, 241. (a) Story, Conflict of Laws, § 592. loci rei site requires some Massachusetts, 291; Colliss v. Hector, L. R. 19 Eq. 334; Abouloff v. Oppenheimer, 10 Q. B. D. 295. (b) Castrique v. Imrie, L. R. 4 H. L. 429. (c) Ibid. p. 414. formal act to be done by the bankrupt or his attorney, Chap. II. 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 (d). 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 (e). 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 (ƒ). State may be ex § 140. Extent of the judicial foreigners III. The judicial power of every tended to all controversies respecting personal rights and power over contracts, or injuries to the person or property, when the residing party resides within the territory, wherever the cause of territory. action may have originated. (d) See Lord Eldon's observations in Selkrigg v. Davis, Rose's Cases in Bankruptcy, vol. ii. p. 311; Banfield v. Solomon, 9 Vesey, 77; Re Levy's Trusts, 30 Ch. D. 119. (e) See, as to this practice, Ewing v. Orr-Ewing, 9 App. Cas. 34, 40, per Lord Selborne, L. C.; Nelson, Private (f) Kent's Comment. on American within the Part II. Depends upon municipal regulations. Law of America. 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. The operation of the general rule of international law, as to civil jurisdiction, extending to all persons 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 and 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 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. $141. French law. 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, |