this case (x). [But the matter is now regulated by the Rules of the Supreme Court, 1883, Order XI. of which enumerates the circumstances in which service, out of the jurisdiction, of a writ of summons, or notice of a writ of summons, may be allowed (y). The same Order prescribes

(x) Section 19 [(repealed now by 46 & 47 Vic. c. 49)] of 15 & 16 Vic. c. 76. [See Padley v. Camphausen, L. R. 10 Ch. D. p. 550.] [(y) R. S. C. 1883, Order XI. Rule 1. "Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a Judge whenever

(a) The whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits); or

(b) Any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action; or

(c) Any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or

(d) The action is for the administration of the personal estate of any deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of England; or

(e) The action is founded on any breach or alleged breach within

the jurisdiction of any contract wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland; or

(f) Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought

to be prevented or removed, whether damages are or are not also sought in respect thereof.

Rule 2 refers to Scotland and Ireland, and Rule 3 provides, with no qualification, that in Probate actions service out of the jurisdiction may be allowed by leave of the Court or a Judge.

See Re Eager, L. R. 22 Ch. D. p. 86 ; Re Busfield, L. R. 32 Ch. D. p. 123; Hewitson v. Milner, L. R. 21 Q. B. D. p. 8. Ex pte. Jellard, L. R. 39 Ch. D. p. 424.

As to service on Foreign Corporations see] Newby v. Van Oppen, L. R. 7 Q. B. p. 293; [Westman v. Aktiebolaget Snickarefabrik, L. R. 1 Ex. D. p. 240; Nutter v. Messageries, 1 Times Rep. p. 644.]

Vide suprà, § ccii.

that "when the defendant is neither a British subject, "nor in British dominions, notice of the writ, and not the "writ itself, is to be served upon him" (z). Permission to thus serve a writ, or notice of a writ, will not be granted by the Courts as a matter of course, especially where both parties are foreigners (a).]

DCCCXCVIII. Thirdly, with respect to security for costs. [The Rules of the Supreme Court now provide that where security for costs is required, the amount of such security, and the time, manner, and form of giving it, shall be as the Court or a Judge shall direct; and further that" a plaintiff ordinarily resident out of the jurisdiction "may be ordered to give security for costs, though he may be temporarily resident within the jurisdiction" (b)].

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DCCCC. (c) From analogy to the course adopted where the plaintiff is resident out of the jurisdiction, the Courts of Equity have, upon application, restrained an ambassador's servant, whose person is privileged from arrest by the 7 Ann. c. 12, from proceeding with his suit until he had given security for costs (d).

DCCCCI. All states are agreed, France included, that

[(z) Ibid. rule 6. See also Appendix A, part I. Forms No. 5 to No. 10; Order II. rule 4.

(a) Société Générale de Paris v. Dreyfus Brothers, L. R. 37 Ch. D. p. 215. It was observed in the judgment (at p. 226), with reference to costs, that "when one foreigner sues another in the courts of this country on a foreign contract, he is making a very hazardous experiment in asking for leave to serve the defendant, a foreigner, out of the jurisdiction."

New Chile &c. v. Blanco, 4 Times Rep. p. 346.]

[(b) R. S. C. Order LXV. rules 6, 6A. See Wilson, Practice of the

S. C. J. in loc. (ed. 1888, pp. 478-481).

(c) § dcccxcix. is omitted, as it refers to the former practice of the Court of Chancery before it was incorporated into the High Court of Justice.]

(d) Vide antè, vol. ii. § clxxxix.

Anon. Mosely, Rep. p. 175.

Goodwin v. Archer, 2 P. Williams, Rep. p. 452.

Adderley v. Smith, 1 Dickens, Rep. p. 355.

it is competent to them to exercise jurisdiction over foreigners in the matter of immoveable property (immeubles purement réelles ou mixtes) situated within the territory (e). According to French Law, the question as to the immoveable property must be the principal question, and not an accessory (ƒ).

Judgment obtained in the state of the domicil of two foreigners may be put in force by aid of the French courts to affect moveable property in France (g).

Provisional measures (h) (mesures conservatrices ou provisoires), having for their object to secure the safety of person or property of foreigners, are within the competence of the French courts (i).

So if the necessity of adjudicating upon a civil matter between foreigners arises out of a criminal matter (matière criminelle, correctionnelle de police), it is within the competence of the French tribunal (k).

DCCCCII. The High Court of Admiralty in England, being a court of International Law, treated as within its jurisdiction the case of a foreign ship, upon which an obligatio ex delicto attached from an act done to another foreign ship in foreign waters; the circumstance of the arrest within English waters having been holden sufficient to found the jurisdiction (1); [and the High Court of Justice would now do the same].

DCCCCIII. The peculiar status of ambassadors, their exterritorial privileges and immunities from the civil and

(e) Felix, s. 160.

(f) Ibid.

(g) Ib. s. 161.

(h) The absence of any such general power in the English courts is much to be lamented, though, to a certain extent, it will be seen that the end is attained by the process of Injunction, [and by the appointment of Receivers].

(i) Fælix, 162.

(k) Ib. s. 165.

(1) See The Mali Iro, L. R. 2 Adm. p. 356.

criminal law of the state in which they represent the person of a foreign sovereign, have been fully discussed in a former volume of this work (m); and the same may be said of the privileges of foreign sovereigns and governments, both as to suing and being sued (n).

(m) Vol. ii. part vi. ch. vii. viii.

(n) Vol. ii. part vi. ch. i.

CHAPTER XLV.

LAW GOVERNING PROCEDURE AND EVIDENCE-LEX FORIDOCUMENTARY EVIDENCE-PROOF OF FOREIGN OFFICIAL ACTS AND OF FOREIGN LAW-ORAL EVIDENCE-ORDINATORIA ET DECISORIA.

DCCCCIV. IT ought to be a canon of Private International Law that, wherever a foreign tribunal is rightly seised of a cause, and is in the exercise of a lawful jurisdiction, the mode of proof and the rules of evidence which that tribunal adopts should not be questionable before any other forum. It is a consequence of the well-established rule of comity, "de his quæ pertinent ad litis ordinationem "inspicitur locus judicii " (a). An exception to this canon might, no doubt, be furnished by a case in which the plain rules of natural justice have been violated; but such an exception it is hardly safe to contemplate, and no practical rule can be built upon it (b).

DCCCCIV.A. The English courts hold that all questions of procedure are to be determined by the lex fori, and, I think, would include the question of "set-off" in this category (c).

DCCCCV. But when the jurisdiction of a tribunal is duly founded, a question may arise as to what proof it ought to receive as sufficient with respect to an act done in a foreign state. Is it the proof which the foreign state

(a) Vide suprà, citation from Bartolus. Note on Chap. xvi. (b) Fœlix, ii. s. 369; Bar, § 117, “Die Parteien ihre Stellvertreter und Beistände."

(e) Macfarlane v. Norris, 2 Best & Smith, Rep. p. 783 (1862).