mother a Presbyterian, a Roman Catholic was appointed joint guardian with the mother.

Lunatics: Re Sottomaior (1874), 9 Ch. Ap. 677, Mellish, James.

§ 8. Where a minor is a British subject, though only by statute, the English court is competent to appoint him a guardian even though he is domiciled in a country politically foreign, and will do so in a proper case, notwithstanding that he is neither present within the jurisdiction nor has any property within it.

Re Willoughby (1885), 30 Ch. D. 324, Kay, affirmed by Cotton and Lindley, Re Pavitt, [1907] 1 I. R. 234, Meredith. In Re Bourgoise (1889), 41 Ch. D. 310, Cotton, Lindley and Bowen, the appointment was refused because the case was not a proper one.

A minor residing abroad being a necessary party, and she and her foreign guardian declining to appear, a guardian ad litem was appointed: White v. Duvernay, [1891] P. D. 290, Jeune.

9. With regard to the estate-the guardian, curator, or committee of the estate, either appointed by the personal jurisdiction or holding the office by force of the personal law without judicial appointment, can sue and give receipts in England for the personal property of his minor or lunatic. Both as to this § and as to § 6, it will be observed that the office is often held by law without judicial appointment in the case of minors, though it can scarcely be so in that of lunatics. The doctrine of this § very much restricts the occasions for the exercise of the power mentioned in § 5, but where it is exercised the power of the English committee of the estate will be exclusive in England: Re R. S. A., [1901] 2 K. B. 32, Rigby, Vaughan Williams, Stirling.

Lunatics: Newton v. Manning (1849), 1 M. & G. 362, Cottenham; Re Elias (1851), 3 M. & G. 234, Truro; Scott v. Bentley (1855), 1 K. & J. 281, Wood; Hessing v. Sutherland (1856), 25 L. J. (N. S.) Ch. 687, KnightBruce and Turner; Re Baker (1871), L. R. 13 Eq. 168, Wickens, where the lunatic had been judicially found such in the colony of Victoria, and the colonial master in lunacy appeared by the colonial statute to be in the position of a committee; Re De Linden, [1897] 1 Ch. 453, Stirling; Thiery v. Chalmers, Guthrie & Co., [1900] 1 Ch. 80, Kekewich; Didisheim v. London and Westminster Bank, [1900] 2 Ch. 15, Lindley, Rigby and Vaughan Williams, reversing North, where the doctrine was applied in favour of an administrateur provisoire, the lunacy of the person beneficially entitled not having been declared. The decision was followed in Pélégrin v. Coutts, [1915] 1 Ch. 696, Sargant, where it was held that English trustees showed undue caution in refusing to hand over securities deposited with them in England to an administrator appointed by a French court for a lunatic domiciled in France, the administrator having an express power to receive the securities. Where the funds and securities are in England, the court has a discretion about handing them to the foreign curator, as to the exercise of which see Re de Larragotti, [1907] 1 Ch. 14, Cozens-Hardy and Kennedy.

Where a woman was under restraint in New South Wales, but had not been found lunatic there nor was her estate vested in the master in lunacy there, although he had power to sue, it was held that he could not sue or give receipts for her estate in England, although a trustee would be justified in paying to him whatever he or any other proper authority in New South Wales decided that it was for her benefit to expend for her: Re Barlow's Will (1887), 36 Ch. D. 287, Cotton, Bowen and Fry, affirming Kay. Apparently the New South Wales master in lunacy could have sued and given receipts in England, (1) if the estate had been vested in him (Cotton), or (2) if there had been a declaration in New South Wales affecting the woman's status (Bowen and Fry). Now, however, it has been settled by Re Brown, [1895] 2 Ch. 666, Lindley, Lopes and Rigby, that vesting the proprietary right in the committee, &c., which is rarely done, is of no importance, his right to sue and give receipts being sufficient.

Lord Eldon seems to have questioned the power attributed in this § to a foreign committee of the estate of a lunatic: Re Houstoun (1826), 1 Russ. 312. But both as to this point and as to the authority over the person, with reference to which the case is quoted above, § 6, the report is so worded as to leave it possible that Lord Eldon only issued the commission because, the lunatic being in England, he thought it necessary for his protection that not merely a committee, but an English court, should have authority over him and his property.

Minors: A father claimed the enjoyment of his children's property up to the age of eighteen, under Art. 384 of the Code Napoleon, and Sir L. Shadwell appears to have rejected the claim only on the ground that the children were domiciled in this country, and not in that in which the Code Napoleon was in force. Gambier v. Gambier (1835), 7 Sim. 263. In Re Hellmann, however—(1866), L. R. 2 Eq. 363—where a legacy was bequeathed to an infant, Lord Romilly refused to direct the executors to pay it to the father, entitled by the law of the domicile to receive it as guardian. The latter case may perhaps be put on the ground of judicial discretion, as in § 10 otherwise it would not seem to be maintainable, for a distinction could hardly be drawn between recognizing the guardian of an orphan and recognizing the father as guardian during his child's life, or between recognizing a guardian by law and one judicially appointed, and the general doctrine seems to be sufficiently established as well by the cases with regard to lunatics as by that next cited. A Scotch curator bonis and factor loco tutoris is the proper person to retain the English assets of his Scotch minors. Mackie v. Darling (1871), L. R. 12 Eq. 319, Wickens. In Ex parte Watkins (1752), 2 Ves. Sen. 470, it is said, but the saying appears to be only that of counsel, that the appointment in a colony of a guardian of personal estate failed as soon as the infant came to England. Lord Hardwicke appointed a guardian of the personal estate, for which there may have been some special necessity.

§ 10. But where the property is in the custody of the court, or can only be reached by an order to be made by the court under its jurisdiction as to trust property, or under the statutory jurisdiction as to property vested in lunatics, it is in the discretion of the court whether and to what extent it will hand over the property, or the income of it, to the foreign guardian, curator or committee.

Re Morgan (1849), 1 H. & T. 212, Cottenham; Re Stark (1850), 2 M. & G. 174, Langdale and Rolfe; Re Sargazurieta (1853), 20 L. T. 299, Cranworth h; Re Garnier (1872), L. R. 13 Eq. 532, Malins; Re Knight, [1898] 1 Ch. 257, Lindley, Rigby, Vaughan Williams; Re Chatard's Settlement, [1899] 1 Ch. 712, Kekewich; New York Security and Trust Co. v. Keyser, [1901] 1 Ch. 666, Cozens-Hardy. All these are cases with regard to lunatics.

§ 11. It is in the discretion of the court whether to treat a foreign minor as a ward of court, in a case where an English infant would be such a ward.

Brown v. Collins (1883), 25 Ch. D. 56, Kay.

§ 12. "Where any stock is standing in the name of or vested in a person residing out of the jurisdiction of the High Court, the judge in lunacy, upon proof to his satisfaction that the person has been declared lunatic and that his personal estate has been vested in a person appointed for the management thereof, according to the law of the place where he is residing, may order some fit person to make such transfer of the stock or any part thereof to or into the name of the person so appointed or otherwise, and also to receive and pay over the dividends thereof, as the judge thinks fit." Lunacy Act, 1890, st. 53 & 54 Vict. c. 5, s. 134.*

By the interpretation clause, s. 341, "stock includes any fund, annuity or security transferable in books kept by any company or society, or by instrument of transfer alone, or by instrument of transfer accompanied by other formalities, and any share or interest therein, and also shares in ships registered under the Merchant Shipping Act, 1854" (now Merchant Shipping Act, 1894).

"Vested" in this enactment does not mean vested in the sense of English law, but is satisfied by a power to sue and give receipts; Re Brown, quoted under § 9. Security will not be required from the foreign curator if it would not be required from him in the country of his appointment. Re Mitchell (1881), 17 Ch. D. 515, James, Baggallay, Lush; decided on the similar enactment, st. 16 & 17 Vict. c. 70, s. 141.

§ 13. But no English legislation about lunatics or their committees can be applied to persons who have only been found lunatic in foreign proceedings, or to committees or curators appointed in foreign proceedings, without express words to that effect.

Sylva v. Da Costa (1803), 8 Ves. 816, Eldon; overruling Ex parte Otto Lewis (1749), 1 Ves. Sen. 298, Hardwicke.

By the Mentally Deficients Act, 1913, this part of the Lunacy Act is applied to the case of persons found mentally deficient.

§ 14. Nor can the English jurisdiction in lunacy be applied to any one unless an inquiry into the state of his mind is first made under an English commission.

Re Houstoun (1826), 1 Russ. 312, Eldon.

§ 15. The measures which in different legislations are taken to supply the defect of capacity are not confined to the case where that defect is total, but often extend to supplementing a capacity which is deemed to be only incomplete. Thus a wife may be capable of acting with her husband's concurrence, but not otherwise; a minor who has passed out of guardianship may still be capable of acting with the concurrence of a curator, but not otherwise. In such instances it would seem on principle that the modified capacity is one entire institution, and cannot be divided into an abstract capacity to be determined by the personal law, and the practical limits set to that capacity by the personal law, which are to be ignored. But a different view was taken in Worms v. De Valdor (1880), 49 L. J. Ch. 261, 41 L. T. 791, 28 W. R. 346, Fry. There a French plaintiff, who in France was incapable of suing without the concurrence of a conseil judiciaire, on the ground of his having been adjudicated a prodigal, was allowed to sue without the concurrence of his conseil judiciaire. It was shown that the plaintiff's condition in France was not that of total interdiction, and the learned judge said: "There being therefore no change of status, but merely a requirement of French law in particular cases, it appears to me that that does not prevent the plaintiff in this case from suing in this action." And on the same ground a Frenchman similarly circumstanced was held entitled to payment out of court of a fund, notwithstanding the opposition of his conseil judiciaire. Re Selot's Trust, [1902] 1 Ch. 488, Farwell, both as following Worms v. De Valdor and from his own opinion. But what is status except the sum of the particulars in which a person's condition differs from that of the normal person? If there had been no change of condition the question would not have arisen. The learned judge in the first case quoted with approval this passage from Story's Conflict of Laws, s. 104: "personal disqualifications not arising from the law of nature, but from the principles of the customary or positive law of a foreign country, and especially such as are of a penal nature, are not generally regarded in other countries where the like disqualifications do not exist." Probably no English judge would now

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found any proposition on the law of nature, not in the sense of just and reasonable principles, but in that of an ascertainable code of rules. The true grounds for the two decisions are, therefore, first, that in the opinion of some a partial limitation of capacity ought not to be classified as a status, to which the answer is that it is capacity, and status in no other sense, on which the question turns, and secondly, that subjection to a conseil judiciaire is an institution foreign to English law. But so is the curator bonis of a person above the age of pupillarity, and yet the title of a Scotch curator bonis is recognized: Mackie v. Darling, quoted above, p. 47. If the personal law is admitted when it declares the complete incapacity of a person under a certain age, the capacity of one above that age can scarcely, with consistency, be accepted to any greater extent than that in which the personal law confers it, unless the limitation under which it lies by that law is penal, or otherwise falls under the next following §.

§ 16. An incapacity existing by a foreign law of a penal or religious nature, or so opposed to British principles as for example is slavery, will be disregarded in England. This is a more extensive doctrine than would result from the reservation in favour of any stringent domestic policy with which all rules for giving effect to foreign laws must be understood (see below, p. 51), for foreign penal laws may be thoroughly in accordance with English policy, but the doctrine seems nevertheless to have always been received in England in the whole extent here stated.

Lord Justice Fry's quotation with approval from Story in Worms v. De Valdor: see last §. The doctrine was held in England as to the incapacity resulting from religious profession abroad, even while that incapacity was known to English law. "If a man or woman be professed in religion in Normandy, or in any other foreign part, such a profession shall not disable them to bring any action in England, because it wanteth trial; but they must be professed in some house of religion within this realm, for that may be tried by the certificate of the ordinary, so as of foreign possessions the common law taketh no knowledge:" Co. Litt. 132 b. "Has it not always been held that profession in a foreign country did not cause civil death?" Knight-Bruce, in Re Metcalfe (1864), 2 D. J. S. 124.