so as to attract custom which otherwise would flow to himself. Also that a person on whom an injury is fraudu lently committed may have a remedy in the Court of any country where the fraud occurs, and even although he be at the time an alien enemy.

DLXXX.D. In an important case on this subject a bill was filed by an American trading company, incorporated by the Law of the State of Connecticut, in the United States of America, for an injunction to restrain a manufacturer of Birmingham from continuing the fraudulent use of the trade-marks of the company, and for an account of the profits made by him from such use. He, by his answer, admitted the use of the trade-marks complained of; but, by way of rebuttal of the charge of fraud, stated that, in so using the trade-marks, he had only followed a custom, prevalent at Birmingham, for manufacturers of goods of the kind sold by the company to affix on the goods ordered by merchants a particular trade-mark, relying on the respectability of the merchant, when known to them, for the fact that those merchants had authority to act as agents of, or by way of license from, the person entitled to the exclusive use of the trade-marks; and that he had been informed that the company themselves had ordered goods to be manufactured at Birmingham, with their own trade-mark upon them, for the purpose of sale in foreign countries. These statements were left uncontradicted by the company. The Court, upon motion for decree, ordered that an interim injunction which the defendant had previously submitted to, should be continued for a year, with liberty to the company to bring an action within that time to try their right at law; and in case of their not proceeding at law and to trial within that time, that their bill should thereupon stand dismissed with costs (d).

DLXXX.E. Mr. Wharton (e) observes, that "In Eng

(d) Collins v. Reeves (V.-C. Stuart, 1859), 28 Law Journal (Chanc.),

p. 56.

(e) §§ 326, 327, [where it is mentioned that the United States en

"land and the United States, it is needless to say, the counterfeiting of any trade-mark, with intent to defraud

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a vendee, is indictable as a cheat at common law. The "distinction between the intent to defraud the vendee, "and that to defraud the manufacturer, seems overlooked by both Bar and Fœlix. When a vendee is defrauded "by imposing on him an inferior article on a forged brand or stamp, he can prosecute criminally the offender, though no civil action may lie in favour of the foreign "manufacturer whose trade-mark is counterfeited " (ƒ).

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[DLXXX.F. By a Convention, signed at Paris March 20, 1883, Belgium, Brazil, France, Guatemala, Italy, Holland, Portugal, Salvador, Servia, Spain, and Switzerland constituted themselves into a Union for the protection of Industrial Property. It is thereby agreed that the citizens of each of these States shall, in all the other States belonging to the Union, as regards Patents, Industrial designs or models, Trade-marks, and Trade-names, enjoy the advantages which such other States grant or shall hereafter grant respectively to their own citizens. Citizens of countries not belonging to the Union, who are domiciled or have commercial establishments in Union States, are put upon the footing of citizens of Union States. This Convention was acceded to by Great Britain March 17, 1884, and by the United States of America May 30, 1887 (g)].

tered into a treaty on the subject of counterfeiting trade-marks with Belgium, and with France.]

[(f) In Missouri the infringement of a British trade-mark has been considered a criminal offence, State of Missouri v. Gibbs, 56 Missouri Rep. p. 133.

For recent English legislation on trade-marks, see 46 & 47 Vic. c. 57, part iv.; and "The Merchandise Marks Act, 1887" (50 & 51 Vic. c. 28), which repeals the Merchandise Marks Act, 1862, and prescribes stringent rules against deceptive marks on goods, whether produced in this country or imported.]

[(g) Parliamentary Papers, Commercial, No. 28 (1884) and No. 11 (1887). See Appendix III. infrà.]

CHAPTER XXVIII.

ACQUISITION AND ALIENATION OF MOVEABLE AND
IMMOVEABLE PROPERTY.

CAPACITY TO ACQUIRE OR TO ALIENATE.

DLXXXI. HAVING considered in what the nature of moveable and immoveable property consists, and by what laws it is determined, we now approach the consideration of the rules of Private International Law with respect to the acquisition and the alienation of property by Foreigners.

DLXXXII. As it is an incident to the Sovereign Power of every independent State to have authority over all persons residing or being within its borders, so it is an incident to the same power to have authority over all things or property of every description within its borders.

The Laws of each State, therefore, govern the whole property of individuals, whether they be natives or foreigners.

But the same Comity which, in the application of the Law, distinguishes for some purposes between the persons of natives and foreigners, makes a distinction both as to their capacity to acquire property, and also as to the form and manner of its acquisition or alienation.

DLXXXIII. The following summary of the opinions. of jurists upon this important point is, it is believed, correct :

1. There are those, beginning with Huber (a) and ending with Savigny (b), who hold that this capacity to acquire or alienate is governed by the Law of the domicil of the acquirer or alienator.

2. There are those who hold that this capacity does not belong to the qualities of the person, as such, but to the legal working or effect of these qualities, and, therefore, that the lex fori, before which the matter is adjudicated upon, and not the Law of the domicil, should be applied.

3. Those who hold, with Story for their principal exponent, that, generally speaking, the Law of the domicil should be applied, but not in the case of immoveables. In this case, the lex rei sitæ, or the Statutum reale, must govern―a position emphatically condemned by Savigny. But those who maintain the first opinion admit the following exceptions (c):

a. Where the capacity to acquire or alienate is forbidden by the Law of the territory in which the property is situated (cc).

B. Where it is doubtful whether the property be or be not among the res quorum commercium non est, the lex rei sita is to prevail.

7. Where a question arises as to property without an owner (bona vacantia), or as to whether particular property can be acquired by occupatio.

For instance, jura regalia—rights of the Crown and Government with regard to mines, minerals, or treasure trove; or amber in the kingdom of Prussia. In such cases it is admitted that not only ought the lex rei sita to prevail, but that the property acquired under such a title ought to be recognized by all other States.

(a) Prælect. vol. ii. lib. i. tit. iii. App. § 12.

(b) R. R. viii. s. 367. See also Wharton, s. 329 [and cf. Bar, § 64]. (c) Savigny, ibid.

[(cc) For examples of this kind of prohibition, in the United States, see suprà, § ccclxxxv. B. note (99).]

DLXXXIV. Having considered what Law governs the capacity to acquire and to alienate property, we ought, perhaps, to inquire in the next place what Law governs the form and manner of acquisition and alienation. And this inquiry would lead us to an examination

1. Of the opinions of jurists.

2. Of the domestic jurisprudence of States, expressed either in their written Codes, or in their practice mani fested by public acts of the State or by judicial deci

sions.

The subject is, however, discussed at length in that portion of this volume which relates to Obligations; and it is only intended in this place to give the outlines of a sketch, the filling up of which the reader will find in the later part of this work.

DLXXXV. The opinions of jurists on this subject may be ranged, as on the subject of Capacity, under three classes:

1. Those who maintain that the lex domicilii alone ought to govern both kinds of property.

2. Those who maintain that the lex rei sita alone ought to govern both kinds of property.

3. Those who maintain that the lex domicilii governs the moveable or personal, and the lex rei site the immoveable or real, property.

DLXXXVI. 1. Those who hold the first of these opinions do so chiefly in relation to the property of a deceased foreigner, considering that this, of whatsoever character and wheresoever situated, forms an "universitas juris," to be governed by the Law of the domicil. This opinion, however, founded on an exaggeration of the doctrine of Personal Statutes, has certainly no root in the system of Private International Law (d), and it has a

(d) "Mais c'est exagérer évidemment la portée du statut personnel que de prétendre lui soumettre des immeubles par le motif, qu'ils font partie d'une succession."—Felix, liv. i. tit. ii. 8. 61.