DCCCCXXII. The same high authority has judicially pronounced that, as to the stipulations of a contract made abroad, "our courts are bound by foreign law, which must "to them be matter of fact. But it is a totally different "thing as to the law of evidence. The law of evidence is "the lex fori which governs the courts. Whether a wit"ness is competent or not; whether a certain matter "requires to be proved by writing or not; whether certain 66 evidence proves a certain fact or not; that is to be deter"mined by the law of the country where the question "arises, where the remedy is sought to be enforced, and "where the court sits to enforce it" (p).

DCCCCXXIII. Nevertheless, with respect to the title to real property, it has been holden that if an enrolled and recorded copy has, lege sitús, the same force as the original, such copy is itself a conveyance, and that an examined copy is receivable in England, without evidence of search for the original, because it is not regarded as a copy of a copy, but as being made from a duplicate original (q). It is, perhaps, difficult to reconcile the principle of this decision with that of Lord Brougham in the matter of personal property above mentioned.

DCCCCXXIV. Story (r) says that, with regard to Wills of personal property made in a foreign state, it seems to be almost a matter of necessity to admit the same evidence to establish their validity abroad as would suffice for this purpose in the domicil of the testator; otherwise the favourite doctrine mobilia sequuntur personam would be practically overthrown; and therefore parol evidence has been admitted to prove the manner in which the testament is made and proved in the place of the testator's domicil, in order to lay a foundation for the establishment of the testament else

(p) Bain v. Whitehaven & Furness Junc. Rail. Co., 3 House of Lords Cases, at p. 19.

(q) Tulloch v. Hartley, 1 Younge & Coll. Chancery Rep. p. 114. (r) Conflict of Laws, s. 636.--De Sobry v. De Laistre, 2 Harris & Johnson, (Maryland) Rep. pp. 191-195.

where. Still the reader must bear in mind the observations of Lord Brougham in Yates v. Thomson.

[DCCCCXXIV.A. The question whether a foreign document not bearing the stamp required by its own Law could be received in evidence in England, was raised in Bristowe v. Sequeville (rr); in which case it was decided that if by the law of a foreign country a document is only inadmissible in evidence for want of a stamp, it is a valid contract, and receivable in evidence in another country, but "if for "want of a stamp a contract made in a foreign country is "void, it cannot be enforced here."]

DCCCCXXV. Upon the important question whether the lex fori or the lex loci contractús ought to govern in cases where Prescription or a Statute of Limitation is pleaded or relied upon, the reader is referred to what has been said in the chapter on the Discharge of Obligations (s).

DCCCCXXVI. The priorities and privileges of creditors, in the marshalling and distribution of assets, are considered by Story (t), who founds his opinion on a passage from Rodenburgh, as matters relating to the forms and order of proceedings, and as therefore ruled by the lex fori. This operation appears, however, to be subject to some qualifications (u).

DCCCCXXVII. The question as to the time within which an appeal must be instituted is clearly among the ordinatoria litis, and determinable by the lex fori (x).

[(rr) 5 Exch. Rep. p. 275 (A.D. 1850). The law was less clear in the earlier cases, viz.: Alves v. Hodgson, 7 Term Rep. p. 241; Clegg v. Levy, 3 Camp. Rep. p. 166; James v. Catherwood, 3 Dowl. & Ry. p. 190; Wynne v. Jackson, 2 Russ. Rep. p. 351. As to Bills of Exchange vide suprà, & dcccxliii.

See cases discussed in Westlake, § 199 (edit. 1880).

Wharton, Conflict of Laws, chap. x. §§ 685-688.]
(s) Chap. xl. §§ decci-deccviii.

(t) Confl. of L. s. 423b; cf. Cook v. Gregson, 2 Drewry, Rep. p. 286. (u) As to liens on property depending on the lex sitûs, vide suprà, § declxii.; as to cases of Bankruptcy, § declxv. et seq.; and as to Stoppage in trans tu, § dcccxxx. et seq.

(x) Tulloch v. Hartley, 1 Younge & Coll. Chancery Rep. p. 114.

DCCCCXXVII.A. The question whether a foreign suitor have or have not in a particular suit a legal persona standi in judicio ought, I think, to be determined by reference to the law of his own country (y). But it is doubtful whether such would be the ruling of an English court (z).

A case came before an English court in which the question was whether a husband and wife, who had carried on trade as partners in Spain, could sue as such in our courts. It was ruled that they could not, nor maintain a joint action against persons resident in this country, to recover the amount of a balance due to the partnership account, without proof being given that by the law of Spain a feme covert is permitted to trade; and it is doubtful whether an action could be maintained by both, even on such proof being given (a).

DCCCCXXVII.B. In the case of the Halley, a Norwegian barque was run down in Belgian waters by an English steamship, which was afterwards arrested at the suit of the owners of the Norwegian vessel by process out of the High Court of Admiralty of England. The defendants, the owners of the steamship, pleaded that by the Belgian or Dutch laws in force at the place of the collision their ship was compelled to take on board, and be navigated by, a pilot; that she was being navigated by a pilot; and that the collision occurred by his fault. The plaintiffs replied that by the same

(y) Cf. Bar, § 117. [See Lodge v. Phelps, 1 Johnson's Cases, p. 139, and afterwards 2 Caines' Cases in Error, p. 321, cited Ross, Leading Cases, vol. i. p. 877.]

[(≈) Cf. Bullock v. Caird, L. R. 10 Q. B. p. 276, where it was a question whether a member of a Scotch firm could be sued alone in England on a Scotch contract.]

(a) Cosio & Pineyro v. De Bernales, 1 C. & P. p. 266; Ryan & Moody, p. 102, per Abbott, C. J. Sed vide suprà, § dcccxci.A.

According to Mr. Wharton, the question whether an assignee can sue in his own name or not is sometimes technical, sometimes essential in the former case the lex fori would prevail. See his Conflict of Laws, $735, and note (x).

Bar considers the question apparently in the same light; § 117.

laws the owners of the wrongly navigated ship were still liable for the damage, notwithstanding that it was attributable to the pilot. This reply was objected to, and it was contended that the law of the place of the commission of the delict did not apply, and that the case was governed by the lex fori, i.e. by the English law, which makes such a defence as that set up in this case a good one. The Court of Admiralty held the reply good and overruled the objection; but on appeal the Privy Council reversed this decision (b).

But with regard to this case and the English decisions. on pilotage generally, it should be noticed that in the case of the China the Supreme Court of the United States of America held that a compulsion by local law (that of the State of New York) to take on board and be navigated by a pilot does not free the vessel from liability to a maritime lien for a collision occasioned by her wrongful navigation, though under the orders of the pilot (c).

(b) L. R. 2 Adm. p. 3; 2 P. C. p. 193. Vide suprà, § dcccxv.A. (c) 7 Wallace (Sup. Ct. U. S. A.) Rep. p. 53.

CHAPTER XLVI.

FOREIGN JUDGMENTS.

DCCCCXXVIII. IN this chapter it is proposed to consider the effect, both which ought to be and which is, given by the tribunals of one State to judgments delivered by the tribunals of another State; that is, the practice of Comity respecting Foreign Judgments (a). The subject, regarded from an English point of view, would have been properly treated, in the former chapter, under the category of evidence; but regarded more generally, and with reference to foreign jurisprudence, it seems to require a separate and distinct consideration.

(a) Donelli, Comm. lib. xxii. c. v. De exceptione rei judicatæ, quibus, adversos quos, quâ de re, competat.

Felix, s. 319.

Klüber (Europäisches Völkerrecht, § 59) considers that a foreign judgment ought to be executed by other States on the ground of its being a convention between the parties, or an arbitration submitted to by them.

Pinheiro Ferreira treats it as the result of a tacit contract on the part of the foreigner, to be bound by the law of the State in which he resides. Notes sur Vattel, p. 303.

Massé, Droit Comm. liv. ii. tit. ii. num. 800, is also of this opinion -quasi contrahitur in judicio.

Generally on the exceptio rei judicatæ, cf. Savigny, R. R. v. ss. 216, 231, 235, 249; vi. ss. 281, 295.

Merlin, Rép. Jugement, VI. VII. bis, VIII. Q. de Dr. Jugement, XIV.

Pothier, Tr. des Obl. partie iv. c. iii. s. 3, nos. 851 et seq.

Bar, § 125. Das Endurtheil, seine verbindliche Kraft und Vollstreckung.

Wharton, chapter x.

[Smith, Leading Cases, vol. ii., Notes to Duchess of Kingston's Case (pp. 868 et seq. Edit. 1887).

Foreign Judgments, by F. T. Pigott. Edit. 1884.]