immoral, such, for instance, as surrendering to the control of a foreigner a woman wedded to him in a polygamous marriage, valid in his domicile. At the same time, to revert to what, in an interesting passage. Wharton indicates as a distinction between German and Anglo-American law - he is inclined to treat as valid foreign marriages to which all the moral conditions of marriage are present, but which are void in the place of the ceremony from the fact that certain local technical constituents (e. g., consent of parents) do not exist. But it is impossible, in the absence of a prior juridical ground for this distinction, not to notice a want of definiteness in the authorities by which it is sustained. We must insist that it is far better for the security of family international relations, that the law existing at the place of the solemnization of a marriage should be treated as ubiquitous, as a law with which it is easiest for the parties' interest to comply; while to the question of the personal capacity of the parties the lex domicilii is to apply.

Of peculiar interest is the author's acute discussion of divorce. Anglo American jurisprudence, as here exhibited, rests upon what appears to us the sound principle that as to divorce the decisions of the judex domicilii are to be extra-territorially binding. With this, however, is to be coupled the wife's right to acquire a new domicile, or to retain her old domicile, even without her husband's assent, when by such domicile acquired or retained by her she has ground for divorce. The court of such domicile determines the case without regard to the law of the prior domicile of the parties, or to that of the place of the marriage ceremony, or to that of the commission of the alleged offense.

* * *

In his elaborate exposition of the Law of Things, Wharton bases the universally received doctrine that as to immovables the lex rei sita is to prevail, on the immediate political interest of the State in which the land is situate. As to movables, he insists also upon the lex rei sita, excepting as to succession and marriage transfers, to which, as to property in a complex mass, the maxim mobilia sequuntur personam" is to apply. As to all other categories of movables, it is, as he argues, a petitio principii, to apply domicile as the test, when the question is as to who is the party (in cases of conflicting domiciles) to whom the goods really belong. He applies, also, to this question, Savigny's theory of the voluntary submission of the parties. Savigny, it will be remembered, argues that the person who desires to acquire a right in a thing, goes to the place where the thing exists, and subjects himself to the law that there obtains. We have already expressed our dissent from this view. Bar's Inter. Privatrecht, p. 190. To our argument then given, we may add a shorter and perhaps better formularization. The maxim that one State cannot exercise the rights of sovereignty within another State involves in it the principle that the immediate relation of persons to persons, and of persons to things, cannot be affected by a foreign law. This can only be done by the voluntary adoption, by the State concerned, of the foreign law, and this applies as well to movables as to immovables. But no reason exists for such voluntary adoption of a foreign law in reference to movables, and hence we must hold to the applicability in such instances of the lex rei sita, except in those cases in which the locality of the movables (as with baggage in traveling) is uncertain. Difficulties here arise only when the existence or the continuance of a right to

property is conditioned on a personal capacity or on the validity of an obligation, or when it is doubtful whether a specific legal principle can divest rights acquired before the goods in question come into the particular territory.

So far as concerns" obligations and contracts," the author coincides essentially with the principles of Schmid. It may be remembered that Schmid, although not agreeing with us (Dr. Bar), unites in dissenting from the preponderating German opinion, as expressed by Savigny, that the law of the place of performance is decisive in the adjudication of obligations. The applicability of this forum, on the ground of expediency (i. e., because it is expedient to permit the creditor to avail himself of the law of the place where the obligation is to be executed), is justly contested. Schmid argues that "every obligatory relation assumes certain facts to which the law attaches certain performances as consequent. It is only when the law assigns to such facts the capacity to establish a juridical liability, that a judicial decision can be reached. Every judge, therefore, whose aid is in this respect invoked, must inquire, whether the law of the land, to which he belongs, ascribes such particular legal efficiency to such facts. This excludes the operation of foreign laws as effectually from the sphere of obligations as it does from the sphere of other juridical relations. Yet we can only assume this, in cases where the law or custom does not otherwise determine; only when it is a condition of international intercourse, and when our own particular judicial system is not thereby disturbed." The lex fori is therefore, he argues, the basis; while as to the formal accessaries of an obligation, the lex loci actus is to prevail, because the parties cannot tell in advance in what court their contract will be determined, and because the application of another law in respect to the material contents of the obligation can only be sustained by appeal to the express or implied will of the parties; or because the performance of the contract is itself subject as a transaction to the law of the place of performance.

But this argument is, in our opinion, fallacious. It applies to all juridical relations whatever as pertinently as it does to obligations; and must end in the extension of the lex fori to cases which Wharton as well as Schmid hold to be governed by other laws. The uncertainty of material law is as detrimental to the rights as the parties and the security of business as is the uncertainty of technical law. Hence the rule laid down as to the formalities of business is either erroneous, or it subverts the main position previously taken.

We must, therefore, adhere to the principles of Thöl, which has the additional authority of Windscheid (Pandekten, 335), and of Stobbe, p. 198, where the applicatory law is declared to be the lex domicilii of the debtor, while the lex loci contractus, the lex loci solutionis, and even the lex fori (the latter applying in respect to cases where there is a local interdict of the claim on moral grounds), take a subordinate place. Our controlling reason is that any other view than that which accepts as a standard the law of the domicile, or of the residence of the debtor at the time of the obligation, contains a petitio principii, because it assumes the existence of an obligatory relation which it is the object of the suit to determine. Obligation is a liability of the person; and in what better way can this liability be determined than through the medium

of the law of the place where the person involved resides or is domiciled. If Savigny's view (that of the prevalent power of the place of performance) be correct, then, as the rule locus regit actum has with him the mere force of expediency, a contract, which is agreed to in Prussia by two Prussians, but which is to be performed in England, will be valid in Prussia, although it does not comply with formalities which, though essential in Prussia, are not essential in England. It is true that in such case it might be objected that there is no formal proof of the intent of the parties to bind themselves; but this is not necessary, as, e. g., when the parties are ignorant of the applicatory law. In fact, we cannot refuse to admit that the subjection of the parties to the law of the place of performance, in the place of their own law, subjects our own subjects to a foreign jurisprudence, and is in conflict with a solemn decision of the German Supreme Court. *

But if we cannot accept the premises laid down by Wharton in this relation, yet the conclusions which he reaches are substantially, as he states, those of our own. At all events, it appears from section 479, where the tendency of North American courts to apply the lex loci actus in delicts is exhibited, that the preference shown to the lex fori by prior American cases may not be permanent.

On two points we must mention a change in our own views. We formerly held that the debtor's lex domicilii must determine the construction of statutes of limitation, because such statutes are meant for the protection of the individual. * * * We now hold that the suspension of the obligation must be governed by the law of its place of origin; not because the debtor has a contractual right to the limitation, but because we must assume that the law purposes to protect all obligations arising under its dominion down to the time when the outlawry sets in, and because there is no basis on which an intermediate modifying foreign legislation can step in. It is true that statutes of limitation protect the debtor against unfounded claims; but this protection cannot be considered as so far absolute as to subject unconditionally to our laws an obligation undertaken abroad, when the debtor did not at the time belong to our nationality, or when good faith requires that the foreign law should be applied. * * * Hence the law we would apply is that either of the domicile or of the place of the contract. The Anglo-American practice, as stated by Wharton (§ 534), apparently adopts the lex fori, but this only in cases in which the foreign law makes the limitation go only to the process, and not to the debt itself; a distinction which rests upon a misconception of statutes of this class, treating them as simply processual; and giving the higher, while refusing the lower, grade of efficiency to the foreign law.

We must also now accept, from the same reason, the conclusion that the extinction of obligations through bankruptcy is to be determined in conformity with the law which determines as to the obligation itself. It is true that for the bankrupt judge the bankrupt law under which he acts is absolute. But a foreign judge need only recognize as binding this law when the creditor in question took part in the proceedings in bankruptcy. This view is emphatically approved by Wharton (§ 524), and is accepted by the Supreme Court of the United States; although this latter tribunal requires in addition, in order to make the bankrupt decree conclusive, that the creditor at the time

of entering into the obligation should have been domiciled in the State where the bankruptcy is decreed. ***

Peculiarly important and interesting is the comprehensive exposition given by the author of conflict of laws in respect to processual rights. Beyond all doubt the gravest question here agitated is that which concerns the transfer and execution of foreign judgments. We have already (Bar, Int. Privatrecht, 116-125) advanced the position that universal validity should be assigned to the judgments of the State to which the case adjudicated is properly subject; and that, in addition to this, we should recognize as binding the judgments of a court to which the parties voluntarily submitted themselves. From this we deduced a line of conclusions as to the decisions which would be thus validated, rejecting the rule that it is for the execution court to determine the rightfulness of the decision of the court rendering the judgment. In this opinion Wharton (§ 792, ff) wholly coincides, and shows that it is fully sustained by Anglo-American practice. * * * Peculiarly worthy of notice appears to us the American rule (differing, if we mistake not, from the law of Germany), that the subjects of a foreign enemy cannot be permitted, as long as the war lasts, to bring suit without special governmental license; and we do not hesitate to judge, in this respect, the German position, for the reason that war should not be permitted to interfere, any further than is absolutely necessary, with private rights.

While in Story's Conflict of Laws only a few pages is yielded to criminal jurisprudence, to this topic is given, in the treatise before us, a full discussion, from page 548 to page 645. As is well known, the Anglo-American practice has been to treat a crime as only cognizable in the country in which it is committed. Wharton, while rejecting the principle that any one State can take general jurisdiction of all offenses committed by everybody everywhere else (Weltstrafrecht), shows the narrowness of the original principle has been abandoned in practice by statutes authorizing the trial at home of certain offenses committed abroad. According to his view, the courts of the place of arrest have jurisdiction to punish the offender, not only for all offenses committed in the place of arrest, but for treasonable offenses committed abroad- for perjury before American consuls abroad, and for forgery of government securities. We have ourselves (Intern. Privatr. 523, ff) maintained that the personal principle should be absorbed in the territorial in this respect, and have deprecated any further extension of political sovereignty, holding that in cases of offenses committed abroad against the home government by foreigners a lenient punishment might be inflicted, as a matter of necessity, so long as such offenses were not punished in the State of their commission. This view, though adopted by the German legislation, is vehemently attacked by Schmid, by Bremer and by Binding. * * * We must, notwithstanding these criticisms, adhere to our former opinion in this respect; and we do so the more readily because we find, from the author before us, that the views thus defended are exhibiting themselves as a matter of necessity in Anglo-American practice. At the same time, we would substitute for our former argument the following as more simple: Every State, according to our judgment, has the right to punish all offenders, so far as is necessary, for the upholding of its own juridical order (Rechtsordnung). Hence, it may punish offenses committed abroad, but

only so far as this may be done consistently with the established principles, both of international and criminal law. We may certainly punish foreigners who commit offenses in our own country. We may certainly, also, punish our own citizens for offenses committed by them abroad. This is essential, for could the German Empire make the crime of one of its own subjects against itself dependent upon the opinion of a foreign tribunal? In our view, every State must determine by itself all essential conditions of its own existence; but it surrenders this prerogative when it permits its subjects, while continuing its subjects, to release themselves from loyalty to itself. The State does not claim to be entitled to seize its recreant subject in a foreign land. It cannot undertake to compel him, in any way, to return; nor can it violate, in any way, the order of the State in which he takes refuge. It simply says that its subjects in foreign lands have, in addition to their local duties, specific duties to itself. There is no collision in this. Aside from questions arising in war, such actions can only be recognized as an invasion of the rights of the foreign States when the exercise of criminal jurisdiction, in such respect, is treated as if it were simply the exercise of a private right; as if, to express this more strongly, punishing was for the State a pleasure. In such case, the exercise of criminal jurisdiction on the part of the home State would be a diminution of the rights of the State within whose dominion the criminal act took place. But, putting this view aside, the maxim here contested is a mere petitio principii. We must, at the same time, remember that the citizen of a State, so long as he lives abroad, is exposed to the influence of foreign surrounding jurisprudence, and that, consequently, the fact that a particular act (not treasonable) is not penal in such foreign country, should justly relieve him from trial at home for such offense. This exception ceases as to political offenses as to which, from the nature of things, the foreign State could not take notice. At the same time, it appears to us to be a violation both of international and of criminal law for State A to assume penal jurisdiction over the subjects of State B residing in State B. ***

Wharton also discusses at length (§§ 879, 880, 932) the question whether the place of the act itself (in the narrow sense), or the place of the consequence of the act, has international jurisdiction. He takes the latter view. We must maintain our former opinion to the contrary. To make the place of the result decisive in this respect is to rest the question on the place of the abode of the injured party; and this depends, as Wharton, in another section (§ 897), points out, on the assumption of a crime which presupposes the subjection of the act to a particular penal law. Without a petitio principii, can we make any assumption other than that of the residence of, or the allegiance of, the party charged with the offense. In this respect we cannot agree with the author, when he (§ 877) assumes that a State has jurisdiction over all participants in an offense committed within its borders. Wharton criticises, in this respect, certain American cases, which, in our judgment, are right. It is here that these cases rest upon an erroneous reason. The home court has been ruled to have jurisdiction of the foreign principal, when the agent in the act is a mere tool or unconscious instrument in the hands of the principal. This distinction cannot be maintained; it belongs, as purely technical, to the jurisprudence of the particular State, and assumes the latter to have international authority.

The case is otherwise, however, when a person commits a continuous crime, which, in its commission, runs through several territories.

The work before us is a proof that in Germany, as the one side, and in England and in North America, as the other side, it is possible, in respect to a vast number of important questions, to reach conclusions which are not only sure and definite, but comprehensive, and in business relations satisfactory. This, however, can only be done through a careful study of details, and, in this respect, as well as in a just appreciation of foreign jurisprudence, Wharton has done distinguished service.

DIGEST OF ENGLISH LAW REPORTS FOR

SEPTEMBER.

EASEMENT.

Right of way: grant of new way by general words, "All ways and rights of way, occupied or enjoyed, or reputed as appurtenant."- Defendant was owner in fee of a dwelling-house, together with a cottage and stable belonging to it, called "Roseville,” and was also owner in fee of an adjoining farmstead and farm, having a private road which led from a high road to the farm buildings, and passed close to one side of the stable of Roseville. By indenture of the 1st of May, 1860, defendant demised Roseville to H. for ten years. H. entered on the premises, and built over the stable a hay loft, with two openings toward the private farm road, having first obtained permission from defendant to do so, and also permission from defendant and the then tenant of the farm to use the farm road for the purpose of bringing hay, straw, etc., to the loft, that being the only access to the openings in the loft. H. and the sub-tenants occupying Roseville continued during the term to use the road up to May, 1870; at that time plaintiff agreed to purchase Roseville of defendant; and by deed of the 2d of August, 1870, Roseville, etc., was conveyed by defendant to plaintiff in fee, "together with all *** ways and rights of way, * * * easements and appurtenances to the said dwellinghouse, cottage, and hereditaments, or any of them appertaining, or with the same or any of them now or heretofore demised, occupied, or enjoyed, or reputed as part or parcel of them, or any of them, or appurtenant thereto. Held, that the right to use the farm road for the aforesaid purposes passed to the plaintiff under the above words. Langley v. Hammond, Law Rep., 3 Ex. 161, discussed. Kay v. Oxley, L. R., 10 Q. B. 360.

MARRIED WOMAN.

I. O. U. given after husband's death, for money of wife lent during his life-time: statute of limitations: consideration for fresh promise: forbearance to sue.— The plaintiff, a married woman, had lent the defendant 201. (her own money), during her husband's lifetime, for which the defendant, shortly after the husband's death, viz.: on the 16th of July, 1867, gave the plaintiff an I. O. U. On the 12th of October, 1870, the defendant wrote to the plaintiff's agent, "Yours of the 10th instant received, respecting Mrs. W.'s claim upon me. It is totally out of my power at the present time to liquidate the whole or even part of the same. I am in the anticipation of a better position, and, should I be successful, Mrs. W.'s claim shall have my first consideration. Meanwhile, I shall be pleased to pay a reasonable interest on the amount. Show this

First, as to disability on the ground of natural incompetency, Mr. Justice Story lays it down broadly, that idiots, lunatics, and other persons not sui juris, are wholly incapable of appointing an agent. On Agency, p. 6. This cannot be accepted without qualification, for it has been distinctly laid down by the Court of Exchequer Chamber, after a review of the cases, that when one of the parties to a contract is of unsound mind, and the fact is unknown to the other contracting party, no advantage having been taken of the lunatic, this unsoundness of mind will not vacate a contract, especially where the contract is not merely executory, but executed in whole or in part, and the parties cannot be restored altogether to their original position. Milton v. Camroux, 4 Exch. 17. It is conceived that the same result would take place, if the contract were made through another who acted upon the authority of the lunatic, without having been aware or taken advantage of his state of mind. The principle of the above decision was acted upon in a more recent case of Beavan v. McDonnell, 9 Exch. 309. As to the disability of drunkards, the rule is, that if a person makes a contract in such a state of drunkenness as not to know what he is doing, the other contracting party, who knew him to be in that state, cannot compel him to perform the contract (Hamilton v. Grainger, 5 H. & N. 4), which, however, is not void, but voidable only, and so may be ratified in a sober moment. Matthews v. Baxter, L. Rep., 8 Exch. 132.

The contracts of infants are now either binding or void. They are so by the operation of the infants' relief act, 1874 (37 & 38 Vict., c. 62), which enacts that all contracts henceforth entered into by infants for the repayment of money lent, or for goods supplied (other than contracts for necessaries), and all accounts stated with infants, and all contracts voidable before the passing of this act, shall be absolutely void. In cases not touched by the infauts' relief act, 1874, the validity or invalidity of all contracts and acts done by an infant or on his behalf, during infancy, or immediately subsequent whilst under the influence of those who haa the control over him during that period, is determined by a reference to the injurious or beneficial character of the contract to the infant. Those contracts of infants are held to be absolutely void which are to his prejudice, or in which there is no apparent benefit or semblance of benefit to the infant. See Chambers on Infancy, p. 452, and cases there cited.

The competency or incompetency of a married woman to appoint an agent turns upon the nature of her rights, that is to say, upon the question whether they are those of a feme covert or those of a feme sole. The power of a married woman to appoint an agent is co-extensive with her rights to act as a feme sole. By the common law a married woman cannot in her right as feme covert make a binding contract during coverture. Marshall v. Rutton, 8 T. R. 545; Lewis v. Lee, 3 B. & C. 291; Fairthorne v. Blaguire, 6 M. & S. 73. In order to bind her husband, she must be shown to have authority, express or implied, to act as his agent. Montague v. Benedict, 5 B. & C. 635. She has the right of a feme sole in the following cases: When she has been divorced à vinculo, or separted by decree of judicial separation, or when deserted by her husband and in possession of a protection order (20 & 21 Vict., c. 85, and Ramsden v. Brearley, L. Rep., 10 Q. B. 147), or when the husband has abjured the realm. Lean v. Shutz, 2 W. Bl. 1199; Lewis v. Lee, 3 B. & C. 297. She was in a like position when the husband had been

transported beyond seas as a convict. Carrol v. Blencow, 4 Esp. 27. By the married women's property act, 1870 (33 & 34 Vict., c. 93), a married woman may maintain an action in her own name for the recovery of any wages, earnings, money, and property declared by this act to be her separate property, or of any property belonging to her before marriage, which her husband shall, by writing under his hand, have agreed shall belong to her after marriage as her separate property, and she shall have the same remedies for the protection of such property as if she were an unmarried woman. In equity the separate estate of a married woman is bound by and liable to satisfy a contract entered into by her in reference to her estate, and it wil be assumed, when she has no other means of satisfying the contract, that it has been entered into with reference to such estate. Jones v. Gallagher, 3 D. J. & S. 494; 30 L. J. 298; Picard v. Hine, L. Rep., 5 Ch. 274. Apparently a separate business may be carried on by a wife while she resides with her husband, unless he takes such a part in the business as to render himself principally liable. Laporte v. Costick, 31 L. T. Rep., N. S., 434. Under this act a married woman may, like a feme sole, transfer stock entered or registered in her name, in the manner therein provided (R. v. Carnatic Railway Company, L. Rep., 8 Q. B. 299), but the entry is essential. Howard v. Bank of England, L. Rep., 19 Eq. 295. Again, a married woman who is a sole trader in the city of London, indepen dently of her husband, may, by the custom of London, sue and be sued in the city courts, with reference to her dealings as sole trader. Bac. Abr., “Baron and Feme," M.

64

A distinction is made by the common law between the contracts of alien friends and alien enemies. The contracts of the former were generally valid (Co. Litt. 1296, Bac. Abr. "Aliens," D. J.), although before 7 & 8 Vict., c. 66, they could not take a lease of a house; nor were agreements to grant them such leases valid (Lapierre v. McIntosh, 9 A. & E. 857); but the contracts of the latter are by the common law altogether void (Roll. Abr. Alien," B.; Brandon v Nesbitt, 6 T. Rep. 23), unless such aliens came into this country under a safe conduct, or unless they lived here by the sovereign's license. Boulton v. Dobree, 2 Campb. 163; Wells v. Williams, 1 Salk. 46. By the naturalization act, 1870 (33 Vict., c. 14) it would appear that all aliens, without distinction, are now able to take, acquire, hold, and dispose of real and personal property of every description in the same manner in all respects as if they were natural born British subjects, and hence it would seem they enjoyed all the rights of contract involved in such rights.

By 33 & 34 Vict., c. 23, s. 1, a convict, that is, one against whom, after the passing of the act, judgment of death or of penal servitude shall have been pronounced or recorded by any court of competent jurisdiction in Eugland, Wales or Ireland, upon any charge of treason or felony, is disabled, while subject to the operation of that act, from bringing any action at law or suit in equity, and from alienating or charging any property, and from making any contract, except during such time as he may be lawfully at large under any license. Sections 6 and 30. Outlaws, as the name implies, are without the protection of the law, they are civilites mortui, and can appear in court only for the purpose of reversing the outlawry Re Mander, 6 Q. B. 867, 873; Aldridge v. Buller, 2 M. & W. 412.-Law Times.