them the mantle of his own government, or enable them to invoke its protection. In a proper case, indemnity may be demanded for the injury to the American citizen, and the measure of indemnity would be the extent of the interest of the citizen in the partnership property.

$275. Decisions of International Tribunals of Arbitration.

International tribunals have on many occasions permitted one of several partners to recover for his undivided interest in partnership property, where it clearly appeared that the other partner or partners labored under a disability depriving him or them of standing before the commission, and this, notwithstanding the general rule that claims in favor of a partnership must be prosecuted by all the partners.1 Thus, the citizen partners in a firm consisting partly of nationals and partly of aliens have been allowed by arbitral courts to recover their pro rata share of partnership claims.2

In several cases in which proof of loyalty or neutrality operated as a condition precedent to recovery, and such proof failed on the part of one or more of several partners, the decisions have not been uniform as to whether the innocent partners could recover their proportionate share of partnership claims. In a number of cases, the court acted on the presumption that the disloyal acts of one partner are imputable to the others, so as to bar recovery on a partnership claim. In other cases, the innocent partner was awarded his pro rata

1 The rule has been applied by the Court of Claims to joint owners having several interests. Fain v. U. S., 4 Ct. Cl. 237, 239.

2 Plumer, Adm. (U. S.) v. Mexico, March 3, 1849, Opin. 182 (not in Moore); Homan (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3409 (partner suing alone held entitled to pro rata share only, although other partner may be equally entitled if he appears as claimant); Jennings et al. (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3135 (dictum); Ruden (U. S.) v. Peru, Dec. 4, 1868, ibid. 1654; Massardo et al. (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 706, 709; Poggioli (Italy) v. Venezuela, ibid. 847, 871; Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 906, 910; Henriquez (Netherlands) v. Venezuela, ibid. 911 (no proof of interest of Dutch members of firm); Peters (Gt. Brit. and Germany) v. Haiti, 1913. See also Hosford v. U. S., 29 Ct. Cl. 42 (suit under Indian Depredation Act of 1891). A German assignor for the benefit of creditors of a firm in which one partner was a Dane was nevertheless permitted to prosecute a partnership claim, inasmuch as he had the legal title. Christern and Co., liquidators (Germany), v. Venezuela, Feb. 13, May 7, 1903, Ralston, 597.

Schreiner v. U. S., 6 Ct. Cl. 360, Nott, J., dissenting, (one disloyal partner,

share of the claim, his right being considered unimpaired by the disloyalty and disability to sue of his associate.1

Attention has already been called to the rule of Anglo-American prize law which renders subject to confiscation the share of a partner in a commercial house established in a neutral country, when his own domicil is in enemy territory,2 and operates to the same effect when the house is established in enemy territory, whatever may be the personal domicil of the partners.3 But the taint of belligerent domicil of a commercial partnership, does not reach the separate property of a partner having a neutral domicil.4

There is a certain type of partnership, the association en nom collectif or en commandite simple, which in civil law countries is regarded as a juristic person and a legal entity, separate and distinct from the individual members composing it,5 and possessing the nationality of the country of its organization or domicil. Civil law countries in and two neutral alien partners, suing under Abandoned or Captured Property Act of March 12, 1863; the decisions in the Levois and Rochereau cases, infra, are squarely opposed); Hargous (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 1280-1283; Lafler and Walley (U. S.) v. Mexico, ibid. 3340, 3342 (semble); McStea v. U. S., Second Alabama Claims Court, ibid. 2380; dictum (had it been a partnership transaction) in Levois v. U. S., Act of June 23, 1874, distributing Alabama award, ibid. 2357.

1 U. S. v. Burns, 12 Wall. 246, 253 (under Act of March 3, 1863); Finn v. U. S., 4 Ct. Cl. 237, 239; Meldrim and Doyle v. U. S., 7 Ct. Cl. 595 (joint owners with several interests); Levois v. U. S., Act of June 23, 1874, Moore's Arb. 2352, 2357 (proof that claim did not arise out of partnership transaction, and claimant not responsible for partner's acts); Rochereau (France) v. U. S., Jan. 15, 1880, Boutwell's Rep. 124, Moore's Arb. 3739 (proof that claimant, non-resident alien, had no knowledge of purchase of certain Confederate bonds, bearing certain indicia of unneutral aid, by his partners in New Orleans).

2 Supra, p. 559, especially Dana's Wheaton, § 535; Duer, Marine insurance, § 45; The Antonia Johanna (1816), 1 Wheat. 159.

The Friendschaft, 4 Wheat. 105; The Cheshire, 3 Wall. 231; The William Bagaley, 5 Wall. 377. See also treaty of April 30, 1803 between the U. S. and France, art. 5, Malloy, I, 514, cited by Andrade, Commissioner, in Finn (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2349 (dictum). In Rodocanochi Sons and Co. v. U. S., Act of June 23, 1874, ibid. 2359, the nationality of a firm was considered that of the locus of its main house. Duer (I, 526), mentions an exception to the right of capture when the shipment from the hostile house of trade is made at the commencement of the war, and the partner is domiciled in neutral territory.

The San Jose Indiano, 2 Gall. 268; The Sally Magee, Blatch. Pr. Cas. 283; The Aigburth, ibid. 635.

This is in fact in accord with the old law of merchants.

which such firms have established themselves have usually denied the severability of the interests of the partners composing the firm, yet international commissions have in most cases admitted the separate claims of the individual partners for their undivided pro rata shares of the partnership property.1

While a presumption is sometimes exercised that partners own equal shares, claims commissions usually require a claimant partner to show the extent of his interest in the partnership.3

§ 276. Surviving Partners.

5

The principle of the common law which invests the surviving partner of a firm with the right to collect the debts of the firm has been applied in a number of cases before domestic and international courts. The rule, however, was considered without application to the claim of a British subject, appearing, before a commission having jurisdiction of claims of American citizens, as the surviving partner of a firm composed of an American citizen and a British subject, the tribunal stating that the rights of the American citizen, who alone was entitled to an award, passed to his personal representative and not to his surviving alien partner.

1 Ruden (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1653; Cerruti (Italy) v. Colombia, Aug. 18, 1894, For. Rel., 1898, 245, Moore's Arb. 2117; Alsop and Co. (U. S.) v. Chile, Dec. 1, 1909, Award July 5, 1911, 5 A. J. I. L. 1079.

The entity was regarded as inseparable in Chauncey (U. S.) v. Chile, No. 4, May 24, 1897, Report, 1901, p. 22; see dissenting opinion by American commissioner. The subsequent Alsop protocol and award (supra) practically reverses this decision. Brewer, Moller and Co. (Germany) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 595. 2 As to joint owners, see The Schooner Nantasket, 39 Ct. Cl. 119.

3 Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 911; Finn (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2348; Headman v. U. S., 5 Ct. Cl. 604. 4 Burdick, F. M., The law of partnership, 2nd ed., Boston, 1906, 139 et seq. Douglas v. U. S., 14 Ct. Cl. 1; Labadie, Adm., v. U. S., 33 Ct. Cl. 476; Stewart, Adm., v. U. S. (French spoliations), 27 Ct. Cl. 221 (notwithstanding fact that surviving partner was not a member of firm when the loss occurred); Garrison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 1356, 3129 (Award by Lieber, Umpire, to American citizen, when no evidence introduced to show deceased partner was not an American citizen); Levois v. U. S., Act of June 23, 1874, Moore's Arb. 2358.

6 Morrison, surviving partner of Plumer and Morrison (U. S.) v. Mexico, March 3, 1849, ibid. 2326 (last part dictum).

CORPORATIONS

§ 277. Citizenship of Corporations.

The nationality of corporations is one of the most actively discussed questions of the law of continental Europe. While some writers dispute the possibility of corporate nationality, the fact that the legislation of practically all countries takes account of foreign corporations, has persuaded publicists to endeavor to establish the criteria of a national corporation. In some countries, little help is obtained from positive legislation.

A corporation may be attached to a territory by three elements. The first is the place where it is created or founded, where the legal formalities of its constitution, authorization and inscription have been carried out. The second is the place where the home office, the active management or center of administration, or what the French call the siège social is located. The third is the place where it carries on the purpose of its organization, its actual operations, its center of exploitation (principale exploitation).2

When these three elements are combined in one country, it is hardly open to question that the corporation has the nationality of that country.3 But when the three elements or some of them are located in 1 Mamelok, A., Die juristische Person im internationalen Privatrecht, Zurich, 1900, 211 et seq.; Pillet, A., Des personnes morales en droit international privé, Paris, 1914; Isay, Ernst, Die Staatsangehörigkeit der juristischen Personen, Tübingen, 1907; Leven, M., De la nationalité des sociétés et ses effets juridiques, Paris, 1900, 199 et seq.; Fromageot, H., De la double nationalité des individus et des sociétés, Paris, 1892, 114-121; Lyon-Caen in 12 Clunet (1885), 265-274; Lainé in 20 Clunet (1893), 273 et seq.; Arminjon in 4 R. D. I., n. s. (1902), 381 et seq.; translated into English by William E. Spear, Clerk, Spanish Treaty Claims Com., Washington, 1907, Document 53; Marais and Barclay in 23rd Report, International Law Asso. (1906), 360-372; Jacobi in 27th Rep. ibid. 368–380, Baumgarten in 28th Rep., ibid. 246-254 and D. J. Trias y Giro, 28th Rep. ibid. 270 et seq. 1889 and 1900 Congrès international des sociétés par actions, Paris, 1889 and 1900. See also the general works on private international law by Bar, Fiore, Weiss, Vareilles-Sommières, Brocher, Surville and Arthuys, Asser-Rivier, Despagnet and Rolin, and the French treatises on commercial law by Thaller, Lyon-Caen and Renault, Houpin and Rous

seau.

2 Jitta, J., La substance des obligations dans le droit international privé, La Haye, 1906, I, 343 et seq.

* Driefontein Cons. Gold Co. v. Janson (1900), 2 Q. B. 339, 346, S. C. [1902], A. C. 484, 490; Foote, Foreign and domestic law, 3rd ed., 144.

different countries, the nationality of the corporation is not always easy to determine. Taking into consideration the three factors mentioned and some others, the following systems as to the determinative criterion of the nationality of a corporation have all had their adherents: It is governed (1) by the nationality of the state which authorizes its existence (Fiore and Weiss); (2) by that of the state within whose jurisdiction it has been organized (Brunard and Cassano); (3) by the nationality of the stockholders (Vareilles-Sommières); (4) by that of the country of subscription or domicil of the majority of the stockholders at the time of subscription (Thaller); (5) by that of the country where it has its principal place of business, a system followed, with variations, by the legislation of most countries; (6) the jurisdictional judge may determine the nationality on all the facts.1 Other solutions have been offered, e. g., that the will of the corporation or of the state should alone determine its nationality.

Leaving aside all theoretical arguments, it may be said that the majority of states in their legislation have accepted the country of domicil (siège, Sitz) as the nationality of the corporation. The question then arises, is the domicil the center of administration, the "home office," or is it the center of exploitation, where the business is carried on. Among the countries of Europe-with the exception of Spain, which attributes Spanish nationality to corporations incorporated in Spain or administered from, or doing business in Spain, and of Italy, Portugal and Roumania, which consider as domestic corporations those doing business within their borders (center of exploitation)2 —the majority adhere to the system by which nationality follows the country in which the center of administration (the siège social) is located.3

1 Arminjon in Spear's translation, supra, 8–18.

2 This principle appears to be favored by Lyon-Caen, Boistel, Asser and Rivier. Fromageot, op. cit., p. 118. See also Lyon-Caen and Renault, op. cit., II (Des sociétés), 4th ed., § 1167, p. 577.

This is the system approved by the Institute of International Law, with the qualification that the siège social be real and actual, and not fictitious and fraudulent (11 Annuaire, 151 et seq.; see also 9 Annuaire, 376 and 10 Annuaire, 153–156) and by the Congress of Corporations at its 1889 Paris session. See also Diena, G., Trattato di diritto commerciale internazionale, Firenze, 1900, I, § 37, and the decisions of French courts cited by Boeck in 20 R. G. D. I. P. (1913), 352. The International Law Asso. has expressed itself to the effect that the domicil of a foreign corporation