In Martin v. Martin, Bell v. Martin (1831), 2 Ru. & My. 507, Leach, a contract on marriage; in Waterhouse v. Stansfield (1851), 9 Ha. 234, and (1852), 10 Ha. 254, Turner, a contract for security; and in Hicks v. Powell (1869), L. R. 4 Ch. Ap. 741, Hatherley affirming Giffard, an unregistered conveyance; were held to be not enforceable against third parties, because not enforceable against them by the lex situs. And in Norton v. Florence Land and Public Works Co. (1877), 7 Ch. D. 332, Jessel, it was not only held that the question whether a contract for security on foreign land was enforceable against third parties depended on the lex situs, but also that the pendency of a suit in the situs in which the question might be determined was a conclusive objection to entertaining the claim.

In Nelson v. Bridport (1846), 8 Beav. 547, Langdale, an attempt had been made to dispose of foreign immovables by will in a line of settlement, through the device of charging the successor named by the will with a trust. He was compellable to execute the trust as far as was possible consistently with the lex situs, being bound quasi ex contractu by his acceptance of the succession; but having done so, and having thereby acquired a limited interest which by a change in the lex situs was made an absolute one, he was not compellable to employ that absolute interest in executing the trusts any further, but might retain it for himself.

§ 176. Where a money demand is made in a court having personal jurisdiction over the defendant, it is no objection to the demand that it is in any way connected with foreign immovables.

Carteret v. Petty (1676), 2 Sw. 323 note, 2 Ch. Ca. 214, Finch; account of waste between tenants in common of Irish land. Roberdeau v. Rous (1738), 1 Atk. 543, Hardwicke; account of rents and profits between tenants in common of land in St. Christopher's. Bayley v. Edwards (1784), Thurlow, stated in another case of the same name, 3 Sw. 703; account of produce of land in Jamaica during possession under a will. Batthyany v. Walford (1886), 33 Ch. D. 624, North; successor in an AustroHungarian fidei-commiss allowed to rank against predecessor's estate in an administration action for what he should establish in Austria-Hungary to be his claim on the balance of the deteriorations and improvements.

But this rule does not apply where the demand is a tax or rate or in the nature of such: Municipal Council of Sydney v. Bull, [1909] 1 K. B. 7, Grantham. If the remarks of the judge in this case can be taken as supporting the second ground mentioned in the head-note, viz., that an action would not lie against a defendant in England when money was charged on foreign immovables, they are, it is submitted, inconsistent with the authorities cited above.

Lastly, some points which rather belong to English law in the special sense than to private international law, even as forming a part of English law, may be conveniently mentioned in this chapter.

§ 177. The British sovereign or government must be deemed to be present in every part of the British empire, so that the fact of the sovereign or of a department of government being a

necessary party cannot found jurisdiction in England for a suit concerning land in any other part of the empire.

Re Holmes (1861), 2 J. & H. 527, Wood; Reiner v. Salisbury (1876), 2 Ch. D. 378, Malins.

§ 178. In order that one may inherit English real estate, he must both be legitimate in accordance with the doctrines of private international law with regard to legitimacy, as to which see above, pp. 99-104, and have been born after an actual marriage between his parents, as distinguished from a marriage antedated by a presumption or fiction of law; that is, he must not have been legitimated per subsequens matrimonium, even in a country where such legitimation proceeds on a presumptive or fictitious antedating of the marriage.

Birtwhistle v. Vardill (1826), 5 B. & C. 438, Abbott, Bayley, Holroyd, Littledale; (1830), 2 Cl. & F. 571, 9 Bl. N. R. 32; opinion of judges to same effect delivered to House of Lords by Alexander: (1835), 2 Cl. & F. 582, 9 Bl. (N. S.) 70; opinion of Brougham delivered to the effect that the status of legitimacy is sufficient, Lyndhurst and Denman reserving their opinions, and appeal ordered to be further argued before the judges: (1839), 7 Cl. & F. 895, opinion of Tindal, Vaughan, Bosanquet, Patteson, Williams, Coleridge, Coltman, Maule, Parke and Gurney delivered to House of Lords by Tindal, to effect of §: (1840), 7 Cl. & F. 940, judgment of House of Lords affirming decision moved by Cottenham, Brougham not opposing though not satisfied. In connection with this great case it will be useful to read the Scotch appeal of Fenton v. Livingstone (1859), 3 Macq. 497, Brougham, Cranworth, Wensleydale, Chelmsford. The doctrine is limited to intestacy: see above, p. 155.

The doctrine of § 178 has often been represented as an application of the maxim that the lex situs governs immovables. By virtue of that maxim, it is said, he who will inherit English land must prove himself heir by the law of England in the special sense, and therefore legitimate by the law of England in the special sense, which law knows nothing of legitimation per subsequens matrimonium. Were succession to personal estate in question, he need only prove himself legitimate by the law of England in the larger sense, which, by virtue of the maxim mobilia sequuntur personam, refers legitimacy when movables are concerned to the personal law, and so in that case adopts as a part of itself the legitimation per subsequens matrimonium which the personal law confers. This is very plausible, but on examination two serious difficulties will be found in it. First, as already pointed out on p. 99, it is thinking in a circle to refer legitimacy to the personal law, since a decision on the legitimacy of the individual is often necessary in order to

ascertain his national character or domicile, on which his personal law depends. The question of legitimacy always turns on the legal appreciation of various facts, and what alone private international law gives or cån give is an appropriate rule for the legal appreciation of each of those facts separately. Next, if it be laid down that when immovable property is under consideration legitimacy is to be referred to the lex situs, it follows for the same reason that this can have no other meaning than that all the various facts on which it depends are in that case to be appreciated by the lex situs. But then we are led far beyond the question of birth before or after actual marriage. The validity of a marriage even preceding the birth is a necessary element of legitimacy, and this in its turn may depend on the validity of a divorce from an earlier marriage; so we are obliged to ask, where can we stop in applying the lex situs? Thus the plausible theory which has been mentioned turns out to be unsatisfactory in its application both to personal and to real estate. Lord Brougham was deeply impressed with the impossibility of stopping at any given point in the application of the lex situs to the circumstances on which legitimacy depends, and urged it strongly in Birtwhistle v. Vardill as a reason for requiring no other quality of legitimacy in an English heir of real estate than that which forms a part of his purely personal

status.

The truth appears to be that there neither is, nor with any convenience can there be, any such thing as legitimacy by the lex situs or by any one other law; that what private international law gives is, and unless excessive difficulties are raised must only be, a personal status of legitimacy, depending on the total result obtained by appreciating each fact in the case according to the law appropriate to it. And that therefore it is a misleading contrast, when the question is put as between determining legitimacy by this or that law; that the true contrast is between accepting and rejecting the personal status of legitimacy as sufficient when the inheritance of English land is in dispute. Birtwhistle v. Vardill should therefore be considered as being what the judges seem to have considered it as mainly being, a decision that a special rule of English law requires birth after marriage as an additional condition for such inheritance. In this it is most likely that they were historically accurate, and it is remarkable that d'Argentré gives a general character to a very similar rule. Nullus princeps, says he, legitimat personam

ad succedendum in bona alterius territorii: Comm. in Patrias Britonum Leges, art. 218, gl. 6, No. 20. The rule is not the same, for the canon law on legitimation was too widely received for a rule intended to meet a conflict of laws arising out of its rejection to be framed in such general terms. The context shows that d'Argentré was thinking of the effect of a foreign judicial sentence of legitimacy, but the case is sufficiently analogous. Supposing, however, that the feudists of all countries were agreed that either a foreign sentence of legitimacy, or a foreign legitimation not arising from any law equally existing in the situs, should not entitle any one to succeed to immovables, this, notwithstanding the agreement, would from its nature be only a rule of the special law of each country, and not a rule for choosing between different special laws, or therefore a rule of private international law as we understand it.

The view of the subject here taken furnishes the answer to a question which has been raised in the Law Quarterly Review, vol. 5, p. 442. If terms of years in English land are to be treated as immovables for the purposes of private international law (above, § 164), must not legitimacy for the purpose of succession to them be determined by the lex situs, and will this be consistent with the rule that for succession to English personalty a child is legitimate who has been legitimated per subsequens matrimonium in the country of which the law is held to govern such legitimation (above, § 126)? The answer is that even in the case of English real estate the legitimacy of the heir is not referred to the lex situs in the sense intended in the question, but the inheritance is subject to a rule of English law which does not exist for terms of years, so that the latter will go to the legitimated next of kin without violating the rule in § 164.

§ 179. A person who by virtue of § 178 is unable to inherit English real estate is also incapable of transmitting English real estate by inheritance except to his own issue.

Re Don (1857), 4 Drew. 194, Kindersley.

CHAPTER IX.

GENERAL NOTIONS ON JURISDICTION.

In the course by which, commencing with Chapter III, we have hitherto travelled through the English doctrines on private international law, we have first considered the status of persons, then the cases which bring prominently forward the conception of various rights of property and obligation as forming a group with the person of their owner as its centre, and lastly rights of property themselves. In other words, we have covered the proper ground of what in the ancient nomenclature of the science are called the personal and real statutes, and we must presently enter on the subject of obligation. Now a statute which disposes of a man's personal condition by reason of his conduct or that of others, as by declaring him married or legitimate by reason of his or his parents' having gone through a certain ceremony, or which disposes of things, including incorporeal rights, on the occasion of such acts or omissions as those which constitute testacy, intestacy, or conveyance, is essentially different from a statute which imposes a duty on the ground of contract or tort. In the former cases, a condition or a thing is disposed of, and although active duties may arise out of the condition, the duty which arises in relation to the thing is merely the negative one of not disturbing the enjoyment of its property by the person in whose favour the law has disposed of it. In the latter case, there is nothing to be disposed of, but the active duty of giving, doing or furnishing-dare, facere, præstare-is imposed on the party. The laws which deal with the former cases proceed on the ground of an authority in relation to the condition or the thing, as being physically within the territorial limits of the laws, or as being connected by widely received traditions or conventions with the regions respectively circumscribed by those limits. The laws which deal with the latter case proceed on the ground of an authority over the agent, including in that term the party who is guilty of an omission to act. But where authority over an agent is concerned, law and jurisdiction are but two aspects of it.

W.I.L.

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