Sir W. James's statement, if it decided what it is said to have decided, is inconsistent with the latter part and with the rest of his judgment; and it is certainly, if taken literally, in flat contradiction with the law as laid down by Mellish L. J. in the same

case.

In further corroboration of the view above suggested as to the real meaning of what James L. J. said in Kelk v. Pearson it is worth while to recall what Lord Esher said in Ecclesiastical Commissioners v. Kino (1880) 14 Ch. D. p. 224, in the hearing of James L. J. himself.

He first says that the true rule is that laid down in Back v. Stacey and Parker Smith and then continues :

v.

'Then it was said that the law had been altered by the ruling of James L. J. in Kelk v. Pearson. I confess that his judgment there seems to me to be directly contrary to the proposition for which it is cited, for I find he says: "Since the statute, as before the statute, it resolves itself simply into the same question; a question of degree; which would be for a jury, if this were an action at law, to determine, but which it is for us, as judges of fact as well as law, to determine for ourselves as best we may when we are determining it in Chancery," and he lays down the rule in almost the same words as Best C. J. in Back v. Stacey. Lord Justice Mellish, in the same case, quite as distinctly says that the question is not what may be considered by some persons as sufficient light in London, but that the question is one of degree and comparison between what the plaintiff had before the defendant's acts and what he has after them, and that there must be a substantial difference.'

He then adds words which are very weighty in dealing with the present subject (at p. 225):—

'I have ventured to say this, because to my mind the taking some expression of a judge, used in deciding a question of fact, as to his own view of some one fact being material on a particular occasion, as laying down a rule of conduct for other judges in considering a similar state of facts in another case, is a false mode of treating authority.'

It seems pretty clear then that James L. J. was not the real parent of the proposition laid down by Wright J. in Warren v. Brown. In fact, the Courts continued to administer the law in light and air cases in accordance with the law as laid down in Back v. Stacey and Parker v. Smith until Warren v. Brown was decided. I do not think that it would be disputed by any one familiar with the practice of the Courts that Warren v. Brown was generally regarded

1 viz. that 'If the defendant has left the plaintiff forty-five degrees of light, there is prima facie no injury to the plaintiff, unless he can show something particular in the circumstances of the case.'

as an entirely new departure. The decision of Wright J. in Warren v. Brown was overruled by the Court of Appeal', and so was the decision of Joyce J. in Colls v. The Home and Colonial Stores 2, which was decided shortly after Wright J.'s decision in Warren v. Brown and to some extent in deference to its authority.

FRANCIS R. Y. RADCLIFFE.

(To be continued.)

1

[1902] 1 K. B. 15.

2 [1901] 1 Ch. 302.

133

IS THE RENVOI A PART OF THE COMMON LAW?

UPPOSE that 4 dies leaving movables in England, that according to English law his last domicil was French, and that according to French law his last domicil was English. Assuming that England will apply the law of 's domicil at the time of A's death, by what law will England distribute these movables? If the Common Law reject the renvoi (a noun coined from the French verb renvoyer to describe a doctrine which has excited much controversy in the Civil Law), England will consider irrelevant the French conclusion as to A's domicil and will apply the French Statute of Distributions immediately. If, however, the Common Law include the renvoi, England will accept the French conclusion as to 's domicil and permit France to send back the case to English law for farther determination. Or, to put the problem in another fashion, rejection of the renvoi implies but one application, acceptance of the renvoi two or more applications of the rules of private international law to the distribution of these movables. Which view is supported by principle and authority?

It is generally conceded, by Common Law writers at least, that the law of each country is supreme within its own territory1. Hence the law of one country can have no effect, proprio vigore, in the territory of another. From this it follows that whatever effect the laws of one country have in another depends solely on the laws of the latter. Examples are numerous both in English and American law. Thus the law of the situs determines the effect upon real estate of transactions, occurring either within or without the country 2. In the normal case a court cannot get personal jurisdiction of an absentee by publication 3. Equity, though it has jurisdiction of the parties, will usually refuse to decree the performance of an affirmative act in a foreign jurisdiction. A personal judgment has no force, as such, outside the state where it was rendered, and if action be brought thereon in another state, it lies

1 Story, Conf. of Laws, sec. 18, 20, 23; 1 Wharton, Conf. of Laws, ch. 1; Dicey, Conf. of Laws, Introduction; Mahorner v. Hooe, 9 Smedes & Marshall (Mississippi) 247; Despard v. Churchill, 53 N.Y. 192; Succession of Petit, 49 La. An. 625; Cooper v. Beers, 143 Ill. 25. Contra, Westlake, Priv. Int. Law, Introduction.

2 Duncan v. Lawson, 41 Ch. D. 394; Clark v. Graham, 6 Wheat. (U.S.) 577.

* Buchanan v. Rucker, 9 East 192, 9 R. R. 531; Pennoyer v. Neff, 95 U.S. 714. Carteret v. Petty, 2 Swanst. 323; Watkins v. Holman, 16 Pet. (U. S.) 25.

with the latter to determine whether it will effectuate it or not 1. A penal statute has no effect extra-territorially 2. Service of a writ outside the state imposes no duty3. Other instances might be given, but these are enough to show the territorial character of law. This, in the last analysis, rests upon power. The enactment of a law-giver is binding within the territory because he can make it good with the strong hand if necessary. It has no inherent force in other countries because one sovereign has not the physical power to act as such in the territory of another.

It is generally settled both in England and America that the law of the situs will regulate the succession to movables according to the law of the country where the owner was domiciled at the time of his death. If he died testate that law governs the validity of his will. If he died intestate it determines how distribution shall be made. Historically the rule seems to have been derived from the maxim Mobilia sequuntur personam, though jurists differ as to the mode. Of its practical utility, however, there is no doubt. If the deceased left movables in several countries, and these agree as to his last domicil, the succession thereto is regulated by one law instead of by several. This permits the estate to devolve as a unit instead of in fractions. In practice the court may proceed in either of two ways. Each country may hand over the movables to the country of the domicil, to be dealt with there, or else it may ascertain the law of the domicil and administer it accordingly 7.

Whichever course is adopted the first step is to ascertain the last domicil of the deceased. But domicil is itself a mixed question of law and fact. It may be shortly defined as an inference drawn by law from residence coupled with the appropriate intent. It must therefore be ascertained with reference to some law. This, on principle, should be the law of the situs of the movables. That law is about to effectuate some foreign law which it must now identify. Domicil is the earmark of the foreign law in question. Clearly, then, the law of the situs must lay down the criteria by which this earmark is to be recognized, and determine what facts meet the test which it has just prescribed. Domicil, therefore, is to be ascertained

1 Sirdar Gurdyal Singh v. Rajah of Faridkote [1894] A. C. 670; Nouvion v. Freeman, 15 App. Cas. 1; Bischoff v. Wethered, 9 Wall. (U. S.) 812; Hilton v. Guyot, 159 U. S. 113.

2 Com. v. Lane, 113 Mass. 458; Huntington v. Attrill [1893] A. C. 150; Huntington v. Attrill, 146 U. S. 657.

3

Permanent Building, &c. Co. v. Hudson, 7 Queensland, L. J. 23.

Enohin v. Wylie, 10 H. L. C. 1; Talbot v. Chamberlain, 149 Mass. 57; Dupuy v. Wurtz, 53 N. Y. 556.

5

Doglioni v. Crispin, L. R. 1 H. L. 301; Wilkins v. Ellett, 108 U. S. 256.

Story, sec. 374-81; Westlake, pp. 177-84.

7 Dicey, pp. 678, 679.

3 Udny v. Udný, 1 H. L. Sc. 441; Wilbraham v. Ludlow, 99 Mass. 587.

with reference to the law of the situs, and with reference to that law only 1. In other words, if English law, as the law of the situs, find that the deceased is domiciled in France, it is quite immaterial that France, on the same facts, would find that he is domiciled in England.

When, therefore, the law of the situs has ascertained the last domicil of the deceased, the next step is to ascertain the law of the domicil.' With reference to the law of the situs the rules of foreign law are facts, and are proved as such by evidence. The law of the situs will incorporate one or more of these rules. It first, therefore, must determine what foreign rules are applicable to the case at hand, or, to put the matter another way, which of these facts are relevant and material. In other words, the question. becomes, what meaning does the law of the situs put upon the term law of the domicil'?

The law of any country may be divided into two parts, (a) those rules which deal with the creation, nature, and enforcement of rights, which may be termed its 'internal' law, () those rules which determine what national law is to be applied to the question at issue, which may be termed its 'private international' law3. The words law of the domicil' do not point definitely to any one of these three. So far as construction goes, they may mean, (1) the 'whole' or territorial law of the domicil, which would include both its 'internal' and its 'private international' law, (2) the 'internal' law of the domicil only, (3) the 'private international' law of the domicil only. But construction is only the first step. Farther analysis shows that there are only two real possibilities. Since the internal' law deals directly with rights, and 'private international' law determines what territorial law shall deal with such rights, the application of one excludes the simultaneous application of the other. A concrete case will make this clearer. Suppose, as before, that 4 dies, leaving movables in England, that according to English law he is domiciled in France, but that according to French law his domicil is English. According to English law the law of France is the 'law of the domicil.' If the 'internal' law of France is incorporated the court has only to distribute the movables in accordance therewith, which, of course, passes over, the question

1 Collier v. Rivaz, 2 Curt. Eccl. 855; Anderson v. Laneuville, 9 Moo. P. C. 325; Crookenden v. Fuller, 1 Sw. & Tr. 441; Bremer v. Freeman, 10 M00. P. C. 306; Re BrownSequard, 70 L. T. (N. S.) 811; Hamilton v. Dallas, L. R. 1 Ch. 257; Re Martin [1900] P. 211, per Lindley M. R.; Harral v. Harral, 39 N. J. Eq. 279; Dicey, 113; 1 Wharton, 157. Contra, Re Johnson [1903] 1 Ch. 821; Re Bowes, 22 T. L. R. 711. See Dupuy v. Wurtz, 53 N. Y. 556, 570; Westlake, p. 326.

2 Bremer v. Freeman, 10 Moo. P. C. 306; Haven v. Foster, 9 Pick. (Mass.) 112.

3 Story, sec. 18, 20, 23; 1 Wharton, ch. 1 ; Dicey, Introduction. But see Westlake, Introduction, and ch. 2.