"and to tranship the cargo on board the Otto Sorelle, and "that this decision was rightly confirmed by the Greek "Consul General. Their Lordships do not feel themselves "at liberty to enter into the discussion into which they were invited by counsel for the appellant, or into the question whether the Greek law be or be not at variance "with the general maritime law upon these points. Those "questions would be properly raised on appeal to the "Greek Appellate Court, whether sitting at Athens or "elsewhere, and could not properly be discussed either "before the Court at Malta, or before this tribunal."

66

DCCCCLVI. It must be borne in mind that there is an essential difference between foreign sentences of contentious, and those of voluntary jurisdiction. The latter contains in reality the act of the parties to the suit, to which the formalities of a court of justice are added as witnessing this act and consent. The former is the act of the judge himself; and it is the effect of sentences emanating from contentious jurisdiction that has been considered in the preceding pages.

NOTE TO THE FOREGOING CHAPTER.

List of the principal decisions, since 1830, on the effect of Foreign Judgments in England :

1830. Martin v. Nicholls, 3 Simons, p. 458. Apparently reversed, [in principle], 1834, Houlditch v. Donegal, 8 Bligh, Rep. p. 301. 1831. Novelli v. Rossi, 2 Barn. & Adol. Rep. p. 757.

Becquet v. MacCarthy, ib. p. 951.

1834. Alison v. Furnival, 4 Tyrwhitt, Rep. p. 751.

1834. Houlditch v. Donegal (House of Lords), 8 Bligh, Rep. p. 301. 1838. Koster v. Sapte, 1 Curteis, Rep. at p. 701.

1839. Smith v. Nicholls, 5 Bingham, N.C. Rep. p. 208.

Ferguson v. Mahon, 11 Adol. & Ellis, Rep. p. 179.

1842. Callandar v. Dittrich, 4 Manning & Granger, Rep. p. 68. 1844. Robertson v. Struth, 5 Q. B. Rep. p. 941.

Henderson v. Henderson, 6 Q. B. Rep. p. 288.

1845. Ricardo v. Garcias, 12 Clk & Fin. Rep. p. 368; difficult to reconcile with Houlditch v. Donegal, ubi sup.

1846. Reynolds v. Fenton, 3 C. B. Rep. p. 187.

1849. Vallée v. Dumergue, 4 Exchequer Rep. p. 290.

[1850. Bank of Australasia v. Harding, 9 C. B. Rep. p. 661.]

1851. Bank of Australasia v. Nias, 16 Q. B. Rep. p. 717, as to Colonial

judgments.

1852. Frith v. Wollaston, 7 Exchequer Rep. p. 194.

Paul v. Roy, 15 Beavan, Rep. p. 433. An English Court will enforce a final judgment, but not an interlocutory order, of a foreign court.

1853. Meeus v. Thelluson, 8 Exchequer Rep. p. 638. Foreign judgment upon a bill of exchange. Replication holden bad for not stating what the foreign law was at the time of the acceptance of the bill.

1856. Kelsell v. Marshall (Court of Common Pleas), 2 Jurist (N. S.) p. 1142, as to Colonial judgment.

Reimers v. Druce, 23 Beavan, Rep. p. 145. Master of the Rolls reviews former cases. Error on the face of a foreign judg ment, apparent without the help of extrinsic evidence, invalidates it.

1860. Cammell v. Sewell, 5 H.

Barber v. Lamb, 8 C. B.

& N. Rep. p. 728.
Rep. N. S. p. 95.

[1861. De Cosse Brissac v. Rathbone, 6 H. & N. Rep. p. 301.] 1862. Simpson v. Fogo, 1 J. & H. Rẹp. p. 18; 1 H. & M. Rep. p. 195. 1863. Crispin v. Doglioni, 3 Swab. & Trist. Rep. p. 96 ; L. R. 1 H. L. p. 301. Authority of decision of Court of Domicil as to succession. 1868. Liverpool Marine Credit Co. v. Hunter, L. R. 3 Ch. App. p. 479. 1869. Dent v. Smith, L. R. 4 Q. B. p. 414. In this case, which was an action against underwriters to recover general average paid by order of a Russian Consular Court at Constantinople, it was holden not necessary to show strictly that the Russian Court had acted within its jurisdiction, as it had the custody of the property, and the only way of recovering it was to pay the general average.

1870. Castrique v. Imrie, 8 C. B. N. S. pp. 1, 405; L. R. 4 H. L. p. 414.

[

Godard v. Gray, L. R. 6 Q. B. p. 139.

Schibsby v. Westenholz, ibid. p. 155.]

1872. Messina v. Petrococchino, L. R. 4 P. C. p. 144. [1873. Ochsenbein v. Papelier, L. R. 8 Ch. App. p. 695.] 1874. Copin v. Strachan, Copin v. Adamson, L. R. 9 Ex. p. 345; 1

Ex. D. p. 17.

[1876. Meyer v. Ralli, L. R. 1 C. P. D. p. 358.

The Delta, L. R. 1 P. D.

p. 393.

1879. The City of Mecca, L. R. 5 P. D. 28, 6 P. D. 106.

1880. Rousillon v. Rousillon, L. R. 14 Ch. D. p. 351.

1882. Abouloff v. Oppenheimer & Co. L. R. 10 Q. B. D. p. 295. 1887. Re Trufort, Trafford v. Blanc, L. R. 36 Ch. D. p. 600.

Société Générale de Paris v. Dreyfus Brothers, L. R. 37 Ch. D. p. 215.

Re Henderson, Nouvion v. Freeman, L. R. 37 Ch. D. p. 244.]

CHAPTER XLVII.

LEX FORI-PROVISIONAL MEASURES-INTERDICTA.

DCCCCLVII. It often happens that before the regular institution of a suit, justice and the interest of parties may require the aid and intervention of a court:

(1.) To prevent the apprehended, or the actual, infringement of rights.

This intervention may take the shape of a measure affecting either the property or the person about to infringe such rights.

(2.) Or it may happen that an obligor or debtor is about to escape from the jurisdiction to which by virtue of his debt or obligation he is amenable, and the obligee or creditor may desire to prevent this escape by arrest of his person.

DCCCCLVIII. (1.) The former class of cases is provided for in all States which have founded their jurisprudence upon the Roman Law (a), by the adoption of measures analogous in their effect to the Prætorian Interdicts. These were, properly and originally speaking, of a

(a) Inst. lib. iv. t. xv. : “Erant autem interdicta formæ atque conceptiones verborum, quibus prætor aut jubebat aliquid fieri, aut fieri prohibebat, quod tunc maximè fiebat, cum de possessione aut quasi possessione inter aliquos contendebatur. Sec. 1 Summa autem divisio interdictorum hæc est: quod aut prohibitoria sunt, aut restitutoria, aut exhibitoria. . . . Sunt tamen, qui putent propriè interdicta ea vocari quæ prohibitoria sunt, quia interdicere sit denunciare et prohibere restitutoria autem et exhibitoria, propriè decreta vocari. Sed tamen obtinuit, omnia interdicta appellari: quia inter duos dicuntur."

prohibitory character (prohibitoria), though in the time of Justinian they embraced measures having for their object the restitution of property (restitutoria), and the compelling the production of a particular person, as [for instance] a slave or a child, subject to the control and within the power of another (exhibitoria).

DCCCCLIX. These proceedings, which the French Law calls conservative and provisional measures (b) (mesures conservatoires, mesures provisoires), are admitted by that law in exception to its general principle; for even in the case of two foreigners the French Law applies this provisional remedy, while it refuses to entertain the question of the merit (le fond) of their dispute.

The president of a tribunal may empower a foreigner to seize money or effects in the possession of a Frenchman belonging to a foreign debtor.

It is competent also to the French tribunals to order an inventory of goods situated in France, and appertaining to a deceased stranger; although the proceedings necessary to secure by probate or administration a representative to the deceased have been taken, or although, in the language of French Law, the succession has been opened in a foreign State; and also, perhaps, to order a deposit of security for the value of the effects. It is also competent to the French tribunals to order such provisional measures as may be necessary to secure the personal safety and means of existence of a foreign wife or husband, or of their children. But it is only at the instance of a commission rogatoire that the French tribunal will nominate an administrator of the goods of a stranger physically or morally incapable to act for himself.

DCCCCLX. The English Law does not set itself in motion, as the foreign law often does, to preserve by a provisional measure the goods of a deceased foreigner. The English Courts will, however, on their aid being

(b) Fælix, ss. 162, 250.