Selections from
A TREATISE
ON THE
CONFLICT OF
LAWS
BY JOSEPH H. BEALE
ROYALL PROFESSOR OF LAW IN HARVARD UNIVERSITY
AND
REPORTER ON THE CONFLICT OF LAWS
FOR THE AMERICAN LAW INSTITUTE IN THREE
VOLUMES
VOLUME ONE
JURISDICTION
NEW YORK
BAKER, VOORHIS & CO. 1935
COPYRIGHT, 1935 BY JOSEPH H. BEALE
TO JOSEPH STORY
a grateful memorial of the
Centenary of the publication of the first edition of Story's Treatise on
the Conflict of Laws
TABLE OF CONTENTS
VOLUME ONE
Jurisdiction
PAGE
PREFACE.................. vii
GENERAL BIBLIOGRAPHY.............. xvii
CHAPTER 1. INTRODUCTION............. 1
Topic 1. Subject Matter and Meaning......... 1
§ 1.1. Definition of the Subject......... 1
1.2. Other Definitions........... 2
1.3. Practical Necessity for this Branch of Law .... 4
1.4. Preliminary Topics for Investigation...... 5
1.5. The Nature of Law as a Necessary Preliminary Study . 5
1.6. The Limits of Jurisdiction as a Necessary Preliminary Study............... 6
1.7. Rights, Acts, and Remedies as Necessary Subjects for Preliminary Study........... 6
1.8. Nationality and Domicil......... 7
1.9. Whether Criminal Law Is Included in the Subject . . 7
1.10. Public International Law How Far Included ... 8
1.11. Comparative Law How Far Included...... 9
1.12. Sources of Private International Law...... 9
1.13. The Use to Be Made of Authorities of Various Kinds . 10
1.14. The Method of Treatment Outlined...... 12
1.15. Names Proposed for the Subject....... 12
1.16. Criticism of Names Indicating Conflict..... 13
1.17. Criticism of Names Suggesting International Character 14
1.18. Difficulty of Finding Appropriate Name..... 14
1.19. Reasons for Adopting the Name "Conflict of Laws" . 15
2.1. Legal Units............. 16
2.2. What Determines the State........ 16
2.3. Legal Units in the United States ....... 17
2.4. Municipal Ordinances.......... 18
2.5. Use of the Word State to Designate a Legal Unit . . 19
3.1. Necessity for Determining the Nature of Law ... 20
3.2. Body of Principles, Standards, and Rules .... 21
3.3. Application by the Courts of a State...... 21
3.4. Definition of Law........... 22
3.5. Is There a Federal Common Law?...... 25
4.1. Legal Systems............ 26
§ 4.2. Sources of the Common Law........ 28
4.3. The Principal Modern Legal Systems ..... 29
4.4. Other Legal Systems.......... 32
4.5. Acceptance of a Legal System........ 34
4.6. The Part Played by Judicial Decisions..... 36
4.7. The Causes of Change in the Unwritten Law ... 39
4.8. The Part Played by Equity........ 40
4.9. Codification............. 42
4.10. Restatement of the Law......... 43
4.11. Law and the Social Order......... 43
4.12. The Characteristics of Law........ 45
4.13. Certainty and Flexibility of Law....... 48
5.1. No International Sanction......... 51
5.2. Personal and Territorial Law........ 52
5.3. Conflict of Laws Part of the Common Law .... 52
5.4. Foreign Law as a Fact in a Case....... 53
Topic 2. Rules for the Application of Conflict of Laws .... 53
§ 6.1. Nature of Comity........... 53
7.1. Resolutions of the Rules of Conflict of Laws ... 55
7.2. Qualifications............ 55
7.3. The Doctrine of the Renvoi........ 55
8.1. Foreign Title or Divorce ........ 57
8.2. Succession to Chattels.......... 57
8A.1. Meaning of Interest........... 58
8A.2. Social Interests............ 59
8A.3. Private Interests of Person......... 60
8A.4. Interests of Property.......... 60
8A.5. Interests of Will and Act......... 61
8A.6. Rights.............. 62
8A.7. The Legal Protection of Interests ....... 63
8A.8. The Nature of Rights.......... 64
8A.9. The Analysis of Rights.......... 66
Topic I. Primary Rights............. 67
Sub-Topic A. Static Rights........... 67
§ 8A.10. The Nature of Static Rights........ 67
8A.11. Distinction between a Static Right and the Rights Which Protect It.............. 68
Part 1. Personal Status........... 71
§ 8A.12. The Nature of Personal Status........ 71
8A.13. Personality............. 71
8A.14. Other Examples of Personal Status...... 73
8A.15. Relative Status............ 73
Part 2. Rights of Property.......... 75
§ 8A.16. The Nature of Property......... 75
8A.17. The Sort of Interest Protected........ 75
§8A.18. The Sort of Things Which May Be Subject of Interests 77
8A.19. Transfer and Extinguishment of Rights of Property . 78
Sub-Topic B. Dynamic Rights.......... 79
§ 8A.20. The Nature of Dynamic Rights....... 79
Part 1. Absolute Rights........... 80
§ 8A.21. Interest-Protecting Rights......... 80
8A.22. Interest-Enjoying Right......... 81
Part 2. Relative Rights........... 82
§ 8A.23. Contracts and Debts.......... 82
8A.24. Quasi-Contracts............ 82
Topic II. Secondary Rights............ 83
§ 8A.25. The Nature of Secondary Rights....... 83
8A.26. Rights of Redress or Restoration....... 83
Topic III. Remedial Rights............ 84
§ 8A.27. The Nature of Remedial Rights....... 84
8A.28. Right to Sue and to Be Satisfied....... 85
CHAPTER 2. DOMICIL.............. 87
Topic 1. Meaning of Domicil........... 89
§ 9.1. Definition of Domicil.......... 89
9.2. Need of Orientation in the Law....... 90
9.3. Importance of Domicil.......... 91
9.4. Domicil a General Conception in the Law .... 92
9.5. Meaning of Domicil........... 94
9.6. Domicil in a House or in a State....... 96
9.7. Expressions "National Domicil" and "Municipal Domicil".............. 98
9.8. Effect on Domicil of Change of Sovereignty .... 99
9.9. Domicil and Nationality......... 99
9.10. Other Uses of the Term Domicil....... 100
9.11. Domicil in Places Ceded to the Federal Government . 101
9.12. Domicil in Eastern Countries........ 103
9.13. Statutory Regulation of Domicil....... 105
10.1. Domicil a Question of Law of Forum...... 105
10.2. Capacity to Acquire a Domicil....... 108
10.3. Residence and Domicil . '...... 109
10.4. Residence for Purposes of Taxation...... 111
10.5. Residence as a Qualification for Voting or Holding Office 112
10.6. Residence to Gain a Settlement under the Poor-Laws . 113
10.7. Residence as a Basis of Jurisdiction...... 114
10.8. Residence as Foundation of Jurisdiction for Divorce . 116
10.9. Residence for Statutes of Limitations...... 117
10.10. Residence for Attachment......... 118
10.11. Citizenship............. 121
10.12. Homestead............. 121
§ 10.13. Attendance at Public School........ 122
10.14. Other Uses of the Word Residence...... 122
Topic 2. General Principles of Domicil......... 122
§ 11.1. Everyone Must Have a Domicil....... 122
11.2. No One Can Have More Than One Domicil .... 123
12.1. Home and Domicil........... 124
13.1. Elements of the Idea of Home........ 124
13.2. Physical Characteristics of a Home...... 125
13.3. Occupation of the Home......... 126
13.4. The Relation between a Person and His Home . . . 126
Topic 3. Acquisition and Change of Domicil....... 128
§ 14.1. Domicil of Origin........... 128
15.1. Determination of Domicil of Choice a Determination of Fact............... 131
15.2. Change of Domicil by Choice of the Party .... 132
15.3. Examples of Acquiring or Not Acquiring Domicil . . 134
16.1. Act Necessary for Acquiring a New Domicil.... 136
16.2. Domicil without a Fixed Dwelling-Place..... 137
16.3. Acquisition of Domicil by Act of Another .... 139
16.4. When Occupation of Home Begins...... 140
17.1. Domicil of a Sailor or Other Rover...... 140
18.1. Intent Necessary for Acquiring a New Domicil ... 142
18.2. Intent to Abandon Old Domicil Involved .... 145
19.1. Nature of the Intention Required....... 145
19.2. Intention to Acquire or Keep a Domicil Not Enough . 149
20.1. Present Intent to Make a Home....... 151
20.2. Conditional Intent.......... . 153
21.1. Legal or Physical Compulsion........ 154
21.2. Domicil of a Soldier or Sailor........ 154
21.3. Domicil of a Prisoner.......... 158
21.4. Domicil of a Pauper.......... 159
21.5. Domicil in a Charitable Institution...... 160
22.1. Motive of Change of Residence....... 161
22.2. Presence for Temporary Cause........ 163
22.3. Presence in a Foreign Country........ 165
22.4. Presence for Business.......... 167
22.5. Presence to Work in Various Places...... 169
22.6. Presence to Hold Office......... 171
22.7. Presence for Health or Travel........ 172
22.8. Presence for Educational Purposes...... 175
22.9. Presence to Escape Legal Process, or to Gain Access to a Court............... 180
23.1. Continuance of Domicil......... 181
23.2. Union of Fact and Intention Not Necessary to Retain Domicil.............. 182
§ 23.3. Doctrine of Revival of Domicil of Origin..... 183
24.1. More than One Residence......... 186
24.2. Solution of Doubt as between Two Residences . . . 187
24.3. Two Homes: Domicil in the Earlier Acquired . . . 189
24.4. Predominant Home........... 191
25.1. Home on the Line between Political Divisions of Territory ............... 192
Topic 4. Domicil by Operation of Law......... 194
§ 26.1. Domicil by Operation of Law........ 194
27.1. Domicil of a Married Woman........ 195
27.2. Wife's Domicil with the Husband....... 197
28.1. Separate Domicil for Divorce........ 199
28.2. Separate Domicil for the Wife........ 201
28.3. Separate Domicil for General Purposes..... 203
28.4. Law Applicable to Desertion........ 207
28.5. Separate Domicil Where the Wife Is at Fault ... 208
29.1. Domicil on Termination of the Marriage by Death or Divorce.............. 208
29.2. Domicil after Judicial Separation....... 209
30.1. Domicil of a Minor Child......... 210
30.2. Residence of a Child.......... 212
31.1. Emancipation............ 212
32.1. Divorce or Separation of Parents....... 215
32.2. Joint Guardianship of Parents........ 216
34.1. Domicil of Illegitimate Child........ 216
35.1. Domicil of Adopted Child......... 217
35.2. Domicil of an Apprenticed Child....... 217
36.1. Domicil on Death of Father........ 217
37.1. Domicil of Child under Guardianship...... 218
38.1. Guardianship of the Mother........ 220
38.2. Domicil after Remarriage of Mother...... 221
39.1. Natural Guardian........... 222
40.1. Domicil of Insane Person......... 223
40.2. Domicil of Insane Person in an Asylum..... 226
40.3. Domicil of Person Non Compos Mentis under Guardianship ............... 226
40.4. Domicil of Person Non Compos Mentis While under Age 227
41.1. Domicil of a Corporation......... 228
41.2. In What State Is the Corporation Chartered ... 230
41.3. Residence of a Corporation........ 231
41.4. Presence for Purposes of Jurisdiction...... 232
41.5. Habitancy under the Judiciary Act...... 237
41.6. Residence for Purposes of Process and Suit .... 238
41.7. Location of a Corporation within the State .... 240
41.8. Location of a Corporation Chartered by Congress . . 241
Topic 5. Evidence of Domicil........... 243
§ 41A. Evidence of Domicil........... 243
41A.1. Presumption and Burden of Proof....... 243
Sub-Topic A. Declarations........... 246
§ 41B. Declarations of Intention........ 246
41B.1. Admissibility of Evidence of Declaration of Intention 246
41B.2. Declarations Part of the Res Gestæ...... 248
41B.3. Declarations against Interest....... 249
41B.4. Declarations of a Deceased Person...... 249
41B.5. Testimony as to Intention....... . 249
41B.6. Sworn Statement of Intention....... 250
41B.7. Registering............ 251
41B.8. Entry in a Directory.......... 251
41B.9. Recitals in Deeds and Wills........ 251
41B.10. Recitals in Other Legal Documents..... 2.53
Sub-Topic B. Acts.............. 253
§41C. Conduct............. 253
41C.1. Residence............. 254
41C.2. Purchase or Retention of a Dwelling-House .. . . 256
41C.3. The Family Dwelling-Place........ 258
41C.4. Carrying on Business.......... 260
41C.5. Bank and Post-Office.......... 261
41C.6. Assessment and Payment of Taxes..... 261
41C.7. Voting.............. 263
41C.8. Office-Holding............ 266
41C.9. Church Connection.......... 266
41C.10. Membership in Clubs and Societies..... 266
41C.11. Place of Death and Burial........ 266
41C.12. General Reputation.......... 267
41D. Bibliography............ 267
CHAPTER 3. GENERAL PRINCIPLES OF JURISDICTION ...... 273
Topic 1. Definition and Character of Jurisdiction...... 274
§42.1. Jurisdiction: How Determined........ 274
42.2. The Station between Jurisdiction and Power. . . . 275
43.1. Effect of Constitution on Power of the State. ... 277
43.2. The Commerce Clause.......... 277
43.3. The Full Faith and Credit Clause....... 278
43.4. The Fourteenth Amendment........ 278
44.1. General Extent of Jurisdiction........ 278
44.2. Limitation on Jurisdiction of a State...... 279
44.3. Concurrent Jurisdiction.......... 279
44.4. Conflicting Exercise of Jurisdiction...... 281
44.5. Jurisdiction Limited to River Traffic...... 282
44.6. Jurisdiction over Border Seas........ 283
§ 44.7. Jurisdiction over Harbors......... 285
44.8. Jurisdiction over the Air......... 286
45.1. Application of the "Law of the Flag" in the United States............... 287
45.2. Jurisdiction over Vessels on the High Seas .... 287
45.3. Vessels Navigating Territorial Waters..... 288
45.4. Vessel in a Foreign Harbor......... 288
Topic 2. The Subjects of Jurisdiction......... 290
Title A. General Principles............ 290
§ 46.1. Exercise of Jurisdiction by Creating Rights .... 290
46.2. Persons and Things in Which Rights Are Created . . 290
Title B. Jurisdiction over Persons......... 291
§ 47.1. General Principles of Jurisdiction over Person . . . 291
47.2. Jurisdiction over Absent Nationals...... 291
Title C. Jurisdiction over Things.......... 292
§ 49.1. Jurisdiction over Land and Things Annexed to Land . 292
50.1. Jurisdiction over a Chattel........ 292
50.2. Jurisdiction over the Title to Property..... 292
50.3. Chattel Removed without Owner's Consent . . . 294
50.4. Jurisdictional Aspect of the Problem...... 298
50.5. Merger of Chattel in Document....... 300
50.6. Jurisdiction over Chattel in Another State .... 300
51.1. Jurisdiction over Intangibles........ 301
52.1. Documents............. 302
53.1. Nature of Share in a Corporation and Certificate . . 303
53.2. Localization of Intangible Things...... 304
53.3. Business Situs............ 304
Title D. Jurisdiction over Status.......... 304
§ 54.1. Domestic and Other Status........ 304
Topic 3. Instrumentalities for Exercising Jurisdiction..... 305
Title A. Executive Jurisdiction.......... 305
§ 56.1. Nature and Extent of Executive Power..... 305
56.2. Acts Not Requiring Official Authority..... 306
58.1. Extra-Territorial Exercise of Vested Rights .... 307
Title B. Legislative Jurisdiction.......... 308
§ 59.1. The Meaning of Legislative Jurisdiction .... 308
59.2. The Extent of Law........... 308
60.1. Requisites of Legislative Action....... 309
60.2. Non-Legislative Action by the Legislature .... 310
60.3. The Effect Abroad of Non-Legislative Acts of Legislature .............. 311
61.1. No Jurisdiction within the Boundaries of Another State 311
61.2. The Clapper Case........... 312
63.1. Jurisdiction over Citizens Abroad...... 314
§ 65.1. Acts the Consequences of Which Extend over a State Line............... 315
65.2. Action through a Chosen Instrument..... 315
65.3. Action through the Course of Events..... 316
65.4. Remote Consequence of Defendant's Act .... 316
66.1. Action by the Communication of Intelligence . . . 317
67.1. Action through a Human Agent....... 318
70.1. Consequences of Violation of a Legal Duty .... 321
CHAPTER 4. JURISDICTION OP COURTS ........... 323
Topic 1. Jurisdiction over Persons.......... 326
Title A. Jurisdiction over Persons in General...... 326
§ 74.1. Reason for Requiring Jurisdiction...... 326
74.2. Effect within State of Judgment without Jurisdiction . 326
74.3. Effect of Lack of Jurisdiction........ 326
74.4. Effect of Notice........... . 329
74.5. Jurisdiction Claimed Because of Property within the State............... 330
74.6. Unauthorized Appearance......... 331
74.7. False Return of Service......... 332
75.1. Methods of Service upon Persons Domiciled in the State 333
76.1. Jurisdiction once Attaching Continues..... 336
Title B. Jurisdiction over Individuals........ 338
§ 77.1. Bases of Jurisdiction.......... 338
78.1. Jurisdiction of the Courts over Persons within the Territory ............... 339
78.2. Exemptions Allowed by International Law .... 340
78.3. Effect of the Use of Force......... 341
78.4. Jurisdiction Obtained by Fraud ....... 341
78.5. Exemption of Non-Resident Witnesses and Parties . 342
79.1. Jurisdiction of the Courts Based on Domicil . . . 343
80.1. Jurisdiction of a State Based on Allegiance .... 344
80.2. Jurisdiction of the Courts Based on Allegiance . . . 344
81.1. Jurisdiction Based upon Consent....... 346
81.2. Acceptance or Waiver of Service....... 346
82.1. General Appearance.......... 347
82.2. Special Appearance........... 349
82.3. Appearance for Several Purposes....... 350
82.4. General Appearance after Judgment...... 351
82.5. General Appearance after Objection to Jurisdiction Overruled............. 351
82.6. Appearance in a Proceeding In Rem or Quasi In Rem 352
82.7. Special Appearance Conferring Jurisdiction by Statute 353
82.8. Submission in Advance......... 355
§ 83.1. Set-Off, Counterclaim, or Cross-Action..... 357
84.1. Suit Arising out of Acts in the State...... 358
84.2. Acts Endangering Public Safety....... 359
84.3. Suit Arising out of Business Done within the State . 361
86.1. Jurisdiction over Partnerships....... 364
86.2. Jurisdiction over Unincorporated Associations . . . 366
86.3. Jurisdiction over Joint Debtors....... 367
Title C. Jurisdiction over Corporations........ 368
§ 87.1. Jurisdiction over Domestic Corporations .... 368
87.2. Service of Process upon Domestic Corporations . . 368
88.1. Recognition of Foreign Corporations..... 369
88.2. Jurisdiction over Foreign Corporations..... 370
88.3. Service on Officer or Agent in the State..... 371
89.1. Jurisdiction in the Absence of Express Consent . . 376
89.2. Corporations Engaged in Interstate Commerce . . 377
89.3. Necessity for Notice.......... 379
89.4. Liability Incurred Outside State....... 379
89.5. Theories of Basis of Jurisdiction....... 382
89.6. Theory of Presence........... 383
89.7. Theory of Implied Consent........ 385
89.8. Theory of Submission ....... 388
90.1. Jurisdiction Based upon Express Consent .... 391
90.2. Appearance in the Suit......... 391
90.3. Acceptance of Service of Process....... 392
90.4. Foreign Corporation as Plaintiff....... 392
90.5. Attachment or Garnishment of Property .... 393
91.1. Appointment of an Agent to Accept Service . . . 394
91.2. Extent of Agent's Authority to Accept Service . . . 395
91.3. Service on the Designated Agent Only..... 395
91.4. Statute Must Be Exactly Followed...... 396
91.5. What Agents May Be Served........ 397
91.6. Officers of the Corporation......... 400
91.7. Managing Agent........... 401
91.8. Local Agent............. 403
91.9. Agent of Railroad or Steamboat Company .... 403
91.10. Agent of Insurance Company........ 405
91.11. Agent of Newspaper Company....... 406
91.12. Agent under the English and Colonial Practice . . . 406
93.1. Effect of Withdrawal from the State...... 407
Title D. Jurisdiction over Persons to Affect Foreign Acts of Things 411
§ 94.1. The Power and the Right to Order or Forbid an Act . 411
94.2. No Court, Even though It Have Jurisdiction to Do So, Will Issue a Decree to Be Carried out in a Foreign State 412
95.1. Jurisdiction to Order Application to Foreign Court . 414
96.1. Injunction against Acting Abroad...... 415
§ 97.1. Jurisdiction to Order a Conveyance of Foreign Land . 417
97.2. Specific Performance of Contract to Convey Foreign Land............... 419
97.3. Performance of Trust in Foreign Land..... 419
97.4. Jurisdiction in Case of Fraud........ 420
97.5. Title Conveyed by Deed of Foreign Land under Order of Court.............. 421
97.6. Refusal of Court to Interfere with Foreign Land . . 422
97.7. Decree Cannot Affect Foreign Land...... 423
97.8. A Decree Cannot Order Partition of Foreign Land . 424
97.9. Power over Foreign Land Requires Jurisdiction over the Owner.............. 425
97.10. Conveyance May Be Compelled Only if There Is Wrongdoing or Obligation........... 426
97.11. Foreclosure of Mortgage on Foreign Land .... 428
97.12. Jurisdiction over Accounts........ 430
97.13. Jurisdiction in Case of Personal Property .... 430
97.14. Jurisdiction to Grant an Injunction Which Can Only Be Obeyed by Doing a Foreign Act....... 431
Topic 2. Jurisdiction over Things.......... 435
Title A. Jurisdiction over Things in General...... 435
§ 98.1. Jurisdiction over Things......... 435
98.2. The Jurisdiction of Equity over Things .... 435
99.1. Jurisdiction over Things Outside the State . . . 436
100.0. Personal or Substituted Service....... 437
101.1. Jurisdiction over Land......... 437
101.2. Jurisdiction over Mortgages and Liens..... 438
101.3. Suit to Quiet Title or Remove a Cloud on the Title . 439
101.4. Jurisdiction to Enforce Trusts....... 440
101.5. Jurisdiction to Cancel or Reform a Deed .... 440
101.6. Jurisdiction to Compel Specific Performance of Contracts Concerning Land......... 441
102.1. Jurisdiction in Rem over Tangible Personalty . . . 441
102.2. Jurisdiction over a Trust, and to Declare a Trust . 443
102.3. Jurisdiction in Partnership Affairs...... 444
102.4. Jurisdiction in Rem over Property of a Corporation . 444 103.1. Jurisdiction over Commercial Instruments .... 445
104.1. Jurisdiction in Rem over Shares in a Corporation . 446
104.2. Jurisdiction over Intangible Property..... 448
105.1. Continuance of Jurisdiction........ 449
Title B. Jurisdiction to Apply Things to the Payment of Claims 449 §
106.1. Exercise of Jurisdiction over a Thing to Compel the
Payment of a Debt.......... 449
106.2. Necessity of Claim against the Thing . . . . . 450
107.1. Attachment of Tangible Property...... 451
§ 107.2. Attachment of an Interest in Property..... 451
107.3. Attachment of Shares in a Corporation .... 452
107.4. Attachment of a Document........ 453
107.5. Foreign Attachment by the Custom of London . . 453
107.6. Garnishment of Tangible Property...... 454
108.1. Garnishment of a Debt; Theoretical Considerations . 455
108.2. Garnishment of a Debt; History of the Doctrine . . 458
108.3. Present Doctrine of the Courts....... 460
108.4. Present Doctrine: Practical Considerations . . . 464
108.5. French Saisie-Arrêt.......... 466
Topic 3. Jurisdiction over Status.......... 467
Title A. Jurisdiction over Status in General....... 467
§ 109.1. Notice and Opportunity to Be Heard..... 467
Title B. Jurisdiction for Divorce.......... 467
§ 110.1. Nature of the Problem......... 467
110.2. Legislative Divorces.......... 470
110.3. Other Non-Judicial Divorces....... 471
110.4. General Rule............ 472
110.5. Statutory Limitations on Divorce...... 473
110.6. Fraud.............. 476
111.1. Invalidity of Divorces without Domicil of Parties . 476
111.2. Impeachment of Judgment........ 478
111.3. Estoppel............. 479
111.4. The Decision in Gould v. Gould....... 480
113.1. History of the Doctrine of Divorce at Separate Domicil 482
113.2. General Rule in Nineteenth Century..... 484
113.3. Erroneous Localization of the Marriage Res . . . 485
113.4. Exceptional View: New York....... 486
113.5. New Jersey............ 490
113.6. Pennsylvania............ 491
113.7. Other States Holding Exceptional Doctrines . . . 493
113.8. England............. 494
113.9. Doctrine of the Supreme Court of the United States . 495
113.10. Haddock v. Haddock.......... 497
113.11. The Present Rule in Principle....... 500
113.12. Later Law of the States......... 505
113.13. Cross Bill............. 507
Title C. Jurisdiction to Entertain other Marital Suits .... 507
§ 114.1. Judicial Separation.......... 507
114.2. Restitution of Conjugal Rights....... 509
115.1. Nullity of Marriage.......... 509
115.2. Nullity from the Date of the Decree..... 512
115.3. Bibliography............ 513
CHAPTER 4A. TAXATION.............. 516
Topic A. Taxation in General........... 517
§ 118A.1. The Problem of Taxation........ 517
118A.2. Jurisdiction of a State to Tax....... 518
118A.3. Subjects of Taxation......... 519
118A.4. Taxation by Two States........ 520
118A.5. Constitutional Provisions........ 521
Topic B. Tax on Persons............. 525
§ 118B.1. Jurisdiction to Tax a Person....... 525
118B.2. Jurisdiction to Tax a Citizen ....... 527
118B.3. Poll Tax............. 527
118B.4. Tax on a Person Measured by the Value of His Property .............. 529
118B.5. Personal Obligation of Non-Resident to Pay Tax . 532
Topic C. Tax on Things............. 533
§118C.l. Tax on Movables........... 533
118C.2. Integration............. 535
118C.3. Reasons for the View Adopted....... 535
118C.4. The Situs of Land........... 536
118C.5. Land outside the State......... 538
118C.6. Mortgage Interest in Land........ 539
118C.7. Things Annexed to Land......... 542
118C.8. Jurisdiction over Chattels......... 545
118C.9. Goods Temporarily within the State..... 547
118C.10. Property Temporarily outside the State .... 549
118C.11. Property in Transit.......... 551
118C.12. Live Stock............. 552
118C.13. Vessels.............. 552
118C.14. Rolling Stock............ 554
118C.15. Machinery............. 555
118C.16. Logs and Other Products of the Soil...... 556
118C.17. Exports and Imports.......... 559
118C.18. Interruption of the Transit........ 561
118C.19. Personalty in the Hands of an Executor or Administrator 564
118C.20. Property in the Hands of a Guardian..... 566
118C.21. Property in Court........... 567
118C.22. Situs of Intangibles.......... 567
118C.23. Situs of a Debt............ 568
118C.24. Debt Evidenced by a Document....... 572
118C.25. Tax on Bonds............ 573
118C.26. Tax on Notes............ 574
118C.27. Tax on a Share of Capital Stock....... 576
118C.28. Tax on Share at Domicil of Owner...... 578
118C.29. Tax on Certificate of Stock as a Specialty .... 580
118C.30. Situs of a Judgment.......... 581
§ 118C.31. Situs of Franchises........... 582
118C.32. Situs of Good-Will of a Business....... 582
118C.33. Situs of a Bank Deposit......... 583
118C.34. Business Capital........... 585
118C.35. The "Corporate Excess"......... 586
118C.36. Partnership Property.......... 587
118C.37. Business Situs of Assets......... 588
118C.38. Seat on Exchange........... 593
118C.39. Business Property Located in Several States . . . 594
118C.40. Seat of a Trust............ 598
118C.41. Place of Taxation of Trust of Movables .... 600
Topic D. Inheritance Tax............ 602
§ 118D.1. Nature of Inheritance Tax........ 602
118D.2. Succession to Land.......... 602
118D.3. Succession to Chattels.......... 604
118D.4. Succession to Intangibles......... 606
118D.5. Taxation of Succession by the State of Domicil . . 607
118D.6. Succession to Land or Chattels Equitably Converted 609
118D.7. Succession to Interest in a Trust Fund..... 612
118D.8. Succession Taxed by Several States...... 613
118D.9. Special Provisions in New York and Great Britain . 615
118D.10. States without Jurisdiction to Tax...... 616
118D.11. Succession to Stock in a Corporation..... 617
118D.12. Succession to Share in Estate of a Decedent . . . 619
118D.13. Succession to Property Having a Business Situs . . 619
Topic E. Gift Tax............... 620
§ 118E.1. Tax on Gifts Inter Vivos......... 620
118E.2. Tax on Appointment under a Power..... 620
Topic F. Excise Taxes............. 621
§ 118F.1. Tax on Acts............ 621
118F.2. Jurisdiction to Impose an Excise Tax..... 623
118F.3. Excise Tax and Property Tax....... 624
118F.4. Constitution as Limitation on State Power .... 626
118F.5. Excise Taxation and Due Process of Law .... 627
118F.6. Present Doctrine — Foreign Corporations .... 629
118F.7. Present Doctrine — Domestic Corporations .... 634
Topic G. Income Tax.............. 637
§118G.l. Nature of Income Tax......... 637
118G.2. Jurisdiction to Impose Income Tax...... 637
118G.3. Tax on Income Where Earned....... 638
118G.4. Tax on Profits of Business........ 639
118G.5. Taxation on the Domicil ......... 640
118G.6. Tax on Income from Trust........ 641
118G.7. Allocation of Income.......... 642
118G.8. Bibliography............ 643
VOLUME TWO
Choice of Law
CHAPTER 5. STATUS ............... 647
§ 119.1. Meaning of the Word Status........ 649
119.2. Kinds of Status............ 649
119.3. What Personal Qualities and Relationships Constitute Status.............. 650
120.1. Effect of Unknown Foreign Status...... 651
Topic A. Absolute Status............ 652
§120.2. Personality............. 652
120.3. Name.............. 654
120.4. Rank, Title, and Office......... 656
120.5. Absence.............. 656
120.6. Civil Death............. 657
120.7. Infamy.............. 657
120.8. Prodigality............. 658
120.9. Insanity.............. 658
120.10. Slavery.............. 658
120.11. Capacity.............. 660
120.12. Majority.............. 661
Topic B. Relative Status............. 663
§ 120.13. Meaning of Relative Status........ 663
120.14. Non-Domestic Status: Jailer and Prisoner .... 663
120.15. Domestic Status........... 664
Title A. Marriage.............. 665
§ 121.1. Meaning of Marriage.......... 665
121.2. General Rule............ 666
121.3. License.............. 671
121.4. Form of Ceremony........... 671
121.5. Ceremony by Whom Performed....... 672
121.6. Capacity.............. 672
121.7. Invalidity of Contract.......... 674
122.1. Mandatory Requirement......... 674
122.2. Marriage in Place Where No Law...... 674
123.1. "Common-Law" Marriage........ 675
124.1. Marriage by Proxy........... 676
125.1. Marriage by Correspondence........ 676
126.1. Consular Marriage........... 676
126.2. Marriage in Embassy.......... 676
127.1. Marriage on Board a Merchant Vessel..... 676
127.2. Marriage on Board a Warship....... 677
128.1. Tribal Marriage............ 677
§ 129.1. Evasion of Requirement of Domicil...... 678
129.2. Consent of Parent or Guardian....... 678
129.3. Nonage.............. 679
129.4. Eugenic Provisions........... 680
129.5. Miscellaneous Provisions......... 681
129.6. Evasion Statutes........... 681
130.1. Prohibition against Remarriage....... 683
132.1. Polygamous Marriages.......... 687
132.2. Incestuous Marriages.......... 687
132.3. Miscegenation............ 691
132.4. Marriage with Paramour......... 692
132.5. Parties Domiciled in Different States..... 692
132.6. Recognition of Power of State of Domicil .... 695
133.1. Refusal to Recognize Valid Foreign Marriage . . . 698
133.2. The English Doctrine of "Christian Marriage" . . 699
133.3. Marriage in a Tribe.......... 701
134.1. Refusal to Extend a Particular Incident to a Foreign
Marriage.............. 701
135.1. Divorce Governed by Law of Forum..... 702
135.2. Recognition of Divorce......... 702
136.1. Law Governing Nullity.......... 703
Title B. Legitimacy............. 704
§ 137.1. Nature of Legitimacy.......... 704
138.1. Legitimacy at Birth........... 704
139.1. Legitimation from Birth......... 706
139.2. Legitimation by Subsequent Marriage..... 707
139.3. Legitimation by Recognition........ 709
140.1. Legitimation after Birth......... 711
140.2. Recognized Natural Child......... 712
141.1. Effect of Legitimacy.......... 712
Title C. Adoption.............. 713
§ 142.1. Nature of Adoption.......... 713
142.2. Jurisdiction to Adopt.......... 713
143.1. Recognition of Adoption......... 716
Title D. Custodianship............ 716
Sub-Title A. Parents ............ 716
§144.1. Meaning of Term Custody........ 716
144.2. Right of Parent to Custody........ 717
144.3. Jurisdiction to Grant Custody....... 717
147.1. Recognition of Custody in Another State .... 719
148.1. Taking Child into Another State...... 720
Sub-Title B. Guardianship........... 720
§ 149.1. Law Governing Guardianship....... 720
CHAPTER 6. FOREIGN CORPORATIONS.......... 723
Topic 1. Creation, Recognition and Dissolution...... 726
§ 152.1. The Nature of a Corporation........ 726
152.2. The Creation of a Corporation....... 727
153.1. The Location of a Corporation....... 729
153.2. Citizenship of a Corporation........ 733
153.3. Corporation as Subject or Alien....... 734
153.4. Personality of a Corporation........ 735
153.5. Residence of a Corporation........ 735
153.6. The Corporation of Another State Is a Foreign Corporation ............... 735
153.7. "Domestication" of Foreign Corporation .... 736
154.1. Recognition of Foreign Corporation...... 736
155.1. Tests of Incorporation.......... 737
155.2. What Is Recognized as a Corporation..... 738
155.3. Collateral Attack on Organization of Foreign Corporation ............... 739
156.1. Purposes of Incorporation......... 739
157.1. A Foreign Corporation Cannot Be Dissolved . . . 741
157.2. Dissolution by State of Charter....... 742
157.3. Incomplete Dissolution......... 743
157.4. Extension of Power by Foreign State..... 744
159.1. Suit after Dissolution.......... 744
159.2. Suit under Law of State of Incorporation .... 746
159.3. Suit by or against Statutory Representative . . . 746
160.1. Business within the State May Be Wound up ... 747
160.2. Property after Dissolution........ 747
Topic 2. Action by Corporation.......... 749
§ 163.1. The Corporation Must Organize in the State of Incorporation .............. 749
163.2. Stockholders' Meetings Must Be Held within the State
of Incorporation........... 751
163.3. Membership Corporations......... 754
164.1. Directors May Meet outside the State of Incorporation 755
164.2. Statutory Provisions for Directors' Meetings . . . 756
165.1. Powers of a Foreign Corporation....... 757
165.2. The Extent of Powers Conferred....... 759
165.3. The Limitation of Powers Conferred...... 760
165.4. The Proof of Powers.......... 764
166.1. A Corporation Cannot Exist outside the State of Incorporation .............. 765
166.2. A Corporation Is Everywhere Recognized as Existing within the State of Incorporation...... 766
166.3. A Corporation May Act through Agents outside the State of Incorporation ,...... 767
§ 166.4. Comity..............768
166.5. Corporate Action...........769
Topic 3. Carrying on Business...........770
§ 167.1. Right of a Corporation to Act in a Foreign State . . 770
167.2. Acts Contrary to Public Policy.......771
167.3. Acts beyond the Power of Domestic Corporations . . 773
167.4. Corporations Formed to Act in Foreign States Only . 775
167.5. Right to Exercise a Franchise.......776
167.6. A Foreign Corporation May Be Excluded from a State 777
167.7. A Foreign Corporation May Be Admitted on Terms . 777
167.8. A Foreign Corporation Is Subject to the Law of the State in Which It Acts..........779
167.9. What Laws of a State Apply to Foreign Corporations . 781
167.10. No Exemption from Local Law by Law of Charter . 783
167.11. The Power to Contract.........784
167.12. Liability for Tort...........785
167.13. The Power to Take and Hold Property.....786
167.14. Power Limited by Charter........786
167.15. Prohibition by the State of Situs.......789
167.16. Conditions Precedent to Doing Business .... 793
167.17. Mortmain Acts............795
167.18. Taking and Holding Real Estate.......797
167.19. Taking by Way of Security........798
167.20. Taking by Devise or Bequest........800
167.21. Taking by Eminent Domain........800
167.22. Taking Personal Property.........801
167.23. Protecting a Name...........802
167.24. Exercising a Franchise..........804
167.25. Taking in Trust...........804
167.26. Conveying Property..........805
170.1. State Jurisdiction over Foreign Corporations Limited . 807
170.2. Obligation of Contracts.........809
170.3. Privileges and Immunities of Citizens.....812
170.4. Equal Protection of the Laws........812
170.5. Taking Property...........814
171.1. Terms Affecting Jurisdiction of the Federal Courts . 815
173.1. State Regulation of Corporations Dealing in Patents . 818
175.1. Interfering with Interstate Commerce.....820
175.2. Transportation............821
175.3. Trade..............821
175.4. Manufacture............822
175.5. Insurance.............823
175.6. What Is an Unlawful Interference.......824
179.1. Limitation on Right to Do Business......826
179.2. Statutes Construed in Accordance with the Constitution
and with Principles of Jurisdiction......827
§ 179.3, Form of Certificate Required........ 828
179.4. What Constitutes Doing Business . . . . . .828
179.5. Single Act............. 830
179.6. Contracting............. 831
179.7. Selling and Buying........... 831
179.8. Dealing with Property.......... 833
179.9. Dealing with Promissory Notes....... 833
179.10. Continuous Business Action........ 834
179.11. Acting through Agent.......... 836
179.12. Office in Foreign State.......... 840
179.13. Railway and Steamship Companies...... 841
179.14. Action through Subordinate Domestic Company . . 841
179.15. Installations............. 843
179.16. Principal Act outside State........ 844
179.17. Exceptional Doctrine in Alabama...... 847
179.18. Solicitation............. 847
179.19. Taking Part in Suit.......... 850
179.20. What Is Doing Business: Question for the Jury . . 851
179.21. Effect of Compliance with the Statute..... 852
179.22. Effect of Non-Compliance with the Statute .... 854
179.23. Matters Not Connected with Business Done in State . 856
179.24. Authorities Holding the Transaction Valid .... 858
179.25. Authorities Holding the Transaction Void .... 860
179.26. Compliance Pending Doing Business..... 862
179.27. Withdrawal from State......... 863
179.28. Penalty for Non-Compliance........ 863
179.29. Legal Proceedings upon Non-Compliance .... 864
Topic 4. Shareholders and Directors......... 865
§ 185.1. Kinds of Individual Liability........ 865
185.2. Existence of Liability Determined by the State of Incorporation .............. 866
185.3. Liability for Unpaid Subscription...... 867
185.4. Statutory Liability to the Corporation..... 869
185.5. Direct Absolute Liability to the Creditor .... 870
186.1. No Recovery if Procedure of Forum Unsuitable . . 871
186.2. Recovery on Contingent Liability...... 873
186.3. Penal Liability of a Stockholder....... 876
186.4. Director's Liability as Surety......... 876
186.5. Director's Penal Liability......... 878
186.6. Rule in the Supreme Court of the United States . . 878
186.7. Enforcement of Judgment against the Director . . 881
186.8. Statutory Refusal to Enforce Individual Liability . . 881
186.9. Procedure Regulated by Law of Forum..... 882
186.10. Statute of Limitations.......... 883
186.11. Suit for Contribution.......... 884
§ 191.1. Original Liability of Shareholder Imposed by Foreign
State............... 884
Topic 5. Interference with Internal Affairs....... 885
§ 192.1. Jurisdiction over Internal Affairs of a Foreign Corporation .............. 885
192.2. Existence of Corporation......... 885
192.3. Power of the State of Charter to Dissolve .... 887
192.4. A Foreign Corporation Cannot Be Dissolved . . . 887
192.5. Title to Stock............ 888
192.6. Contracts Not Declared Void for Misuser of Powers . 890
192.7. Recent Tendency to Take Jurisdiction..... 891
192.8. Shareholders Bound by General Laws of State of Charter 893
192.9. Management Regulated by State of Charter ... 895
192.10. Stock and Stockholders......... 896
194.1. Officers.............. 898
194.2. Proceedings for an Account........ 899
194.3. Proceedings to Restrain Fraudulent Dealings with Property.............. 900
194.4. Proceedings to Restrain the Misuse of Property . . 900
198.1. Assessments and Dividends........ 901
200.1. Books and Records........... 901
Topic 6. Associations Incorporated by More than One State . . 902
§ 203.1. Association of Corporations Chartered by Two States . 902
203.2. Joint Action of Separate Corporations..... 904
203.3. Rechartering a Corporation in a Second State . . . 905
203.4. What Amounts to a Rechartering...... 906
203.5. Nature of the Rechartered Corporation..... 909
203.6. Legal Result of Rechartering........ 910
203.7. Consolidation of Corporations by One State . . . 912
203.8. Effect on the Constituent Corporations..... 913
203.9. Consolidation by the Joint Act of Two States ... 914
203.10. Nature of Such Consolidated Corporations .... 914
203.11. Consolidation of Corporation Which Has Been Rechartered ............. 916
203.12. Responsibility for Act of Consolidated Corporation . 918
203.13. Unity or Independence of Consolidated Corporation . 920
203.14. Statutory Provisions for Consolidation..... 922
203.15. Statutory Provisions for Holding Corporations . . . 925
207.1. Suits by and against a Consolidated Corporation . . 926
207.2. Bibliography............928a
CHAPTER 7. PROPERTY .............. 929
Topic 1. Property in General........... 932
§ 208.1. Movable and Immovable Property...... 932
209.1. Equitable Conversion of Land....... 935
213.1. Property in Contract.......... 937
Topic 2. Immovables..............938
Title A. Conveyances.............938
§ 214.1. Conveyance of Immovables ........ 938
214.2. Conveyances of Land..........939
215.1. Requisites of Deed of Conveyance......939
215.2. Interpretation............940
215.3. Fraud of Creditors...........940
216.1. Capacity..............941
218.1. Duress..............941
220.1. Legal Effect of Conveyance........942
221.1. Nature of Interest Conveyed........942
222.1. Leases and Rents...........943
222.2. Covenants.............944
Title B. Transfers by Operation of Law........945
§ 223.1. Transfer by Operation of Law.......945
224.1. Title by Adverse Possession........945
Title C. Incumbrances.............945
§225.1. Validity of Mortgage..........945
225.2. Capacity to Mortgage Land........946
225.3. Mortgage to Secure Issue of Bonds......946
226.1. Assignment of Mortgage.........946
227.1. Foreclosure.............947
227.2. Foreclosure of Mortgage to Secure Issue of Bonds . . 948
227.3. Recovery of Deficiency after Sale.......948
228.1. Redemption .............949
230.1. Lien...............949
231.1. Married Woman's Charge on Her Land.....949
Title D. Powers...............949
§ 232.1. Power by Operation of Law........949
233.1. Power Created by Owner.........950
233.2. Power of Attorney...........950
233.3. Power in a Will to Sell..........950
234.1. Power of Appointment of Land.......951
235.1. Exercise of Power to Appoint........951
236.1. What Is an Appointment.........952
Title E. Marital Property............952
§237.1. Land Owned at Time of Marriage......952
238.1. Rights in Land Acquired during Coverture .... 952
238.2. Rights Created by Foreign Contract......953
Title F. Equitable Interests...........953
§ 240.1. No Equitable Interest Created by Foreign Court of Law 953
240.2. Constructive Trust of Foreign Land......954
240.3. Enforcement of Contract to Convey Foreign Land . 955
240.4. Enforcement of Promise against Third Parties . . . 960
§241.1. Validity of Trust in Land......... 962
241.2. Effect of Conveyance in Trust....... 964
242.1. Trust in Proceeds of Sale of Land...... 964
243.1. Administration of Trust of Land....... 965
Title G. Succession on Death........... 965
§ 245.1. Intestate Succession to Land........ 965
246.1. Legitimated Child as Heir......... 966
246.2. Inheritance by a Bastard......... 967
247.1. Inheritance by Adopted Child....... 967
247.2. Inheritance from Collaterals........ 968
248.1. Dower.............. 968
249.1. Validity of Will of Land......... 969
249.2. Probate in Another State......... 970
249.3. Form of Will............ 971
249.4. Capacity to Make Will or to Take by Will . . . 971
249.5. Right to Contest Will of Land....... 971
250.1. Revocation............. 972
251.1. Interpretation, Construction, Effect...... 972
251.2. Interpretation............ 972
251.3. Effect of Language of a Will........ 974
251.4. Equitable Conversion of Land....... 975
252.1. Election by Heir........... 976
253.1. Election of Widow........... 976
254.1. Escheat of Land........... 977
Topic 3. Movables.............. 977
Title A. Conveyance............. 977
§ 255.1. Nature of Conveyance of Movables...... 977
255.2. Mobilia Sequuntur Personam........ 978
255.3. Capacity to Pass Title to Movables...... 980
255.4. Distinctions among Movables........ 981
Sub-Title 1. Tangibles............ 981
§ 255.5. Title to Chattels........... 981
255.6. Gifts Causa Mortis.......... 981
256.1. Required Formalities......... 982 '
257.1. Validity of Sale........... 982
258.1. Nature of Interest Created........ 982
259.1. Title by Adverse Possession....... 982
260.1. Effect of Removing Chattels into Another State . 983
261.1. Chattel Embodied in a Document...... 984
262.1. Securities............. 984
262.2. Blue-Sky Laws........... 985
262.3. Intangibles............ 986
263.1. Assignments for Benefit of Creditors..... 987
264.1. Assignments by Authority of Statute..... 987
264.2. Preferring Domestic Creditors....... 988
§ 264.3. Fund to Secure Domestic Creditors...... 989
264.4. Marshaling Assets........... 990
Title B. Incumbrances............. 992
§ 265.1. Chattel Mortgage where Recorded...... 992
265.2. Mortgage of After-Acquired Chattels..... 993
266.1. Removal of Mortgaged Chattel....... 993
266.2. Re-Recording............ 995
266.3. Exceptional Doctrine in Pennsylvania and Louisiana . 996
267.1. Removal after Invalid Mortgage....... 996
268.1. Removal without Consent of Mortgagee .... 996
268.2. Exceptional Doctrine in Texas ....... 997
269.1. Mortgagee's Consent to Taking....... 998
270.1. Attachment of Mortgaged Property in Second State . 998
271.1. Sale by Mortgagor........... 999
272.1. Nature of Conditional Sale........ 999
272.2. What Law Applies to a Conditional Sale .... 1001
272.3. Emphasis of Contractual Character of Sale .... 1001
272.4. Delivery of Chattel by Carrier....... 1002
272.5. Knowledge That Chattel Is to Be Taken into Another State............... 1002
273.1. Chattel Carried into Another State...... 1003
274.1. Void Title Not Made Good by Removal of Chattel . 1004
275.1. Removal without Vendor's Consent...... 1004
275.2. Subsequent Knowledge of Vendor ...... 1005
276.1. Consent of Vendee to Removal....... 1005
277.1. Attachment or Levy.......... 1005
278.1. Sale by Vendee............ 1006
279.1. Lien by What Law Created........ 1006
279.2. Priority of Lien over Mortgage....... 1007
279.3. Vendor's Privilege........... 1008
279.4. Pledge.............. 1008
280.1. Recognition of Lien or Pledge after Removal of Chattel 1008
281.1. Foreclosure of Incumbrance........ 1009
281.2. Redemption after Forfeiture........ 1009
Title C. Powers............... 1009
§ 283.1. Law Governing Power of Attorney...... 1009
285.1. Law Governing Appointment........ 1010
287.1. Appointment by Will.......... 1010
288.1. What Amounts to Appointment....... 1011
Title D. Marital Property............ 1013
§ 289.1. Effect of Marriage on Title to Movables .... 1013
290.1. Title to Movables Acquired during Marriage . . . 1013
292.1. Removal of Movables Held in Community to Another State............... 1016
§ 292.2. Removal of Movables Held Severally into a Community State...............1016
293.1. Effect of Removal on Separate Estate.....1017
293.2. Removal of Movables Separately Held into a Community State............1017
Title E. Equitable Interests...........1018
§294.1. Creation of Living Trust of Movables.....1018
294.2. Living Trusts of Chattels.........1018
294.3. Living Trusts of Securities........1019
294.4. Living Trusts of Intangibles........1020
294.5. Living Trusts of Estates or Other Units Already Aggregated ...............1020
294.6. Marriage Settlements..........1021
294.7. Trusts and the Rule against Perpetuities .... 1021
294.8. Removal of Trust Property........1021
295.1. Creation of Testamentary Trust.......1022
296.1. Interpretation of Instrument Creating Trust . . . 1023
297.1. Seat of Trust............1023
297.2. Administration of a Trust.........1024
297.3. End of Trust............1026
299.1. Supervision of Administration.......1026
Title F. Succession on Death...........1026
§300.1. Effect of Death upon Ownership of Movables . . . 1026
301.1. Widow's Allowance...........1028
302.1. Enforcement in Another State.......1029
303.1. Distribution after Administration......1029
303.2. Distribution by Law of the State Which Has the Estate ...............1031
303.2. Law of Illinois and Mississippi.......1032
303.4. Public Policy............1032
303.5. Disposition of Chattel Real........1032
303.6. Interest in an Undistributed Estate......1033
304.1. Legitimacy of Distributee.........1033
305.1. Adopted Child as Distributee........1034
306.1. Validity of Will of Movables........1034
306.2. Validity of a Particular Legacy.......1035
306.3. Capacity to Receive a Legacy.......1036
306.4. Effect of Will of Movables.........1036
306.5. Election..............1036
306.6. Equitable Conversion of Personalty......1037
307.1. Revocation of Will of Movables.......1037
308.1. Interpretation of Will of Movables......1038
309.1. Escheat..............1039
309.2. Bibliography............1040
CHAPTER 8. CONTRACTS.............. 1042
Topic 1. Place of Contracting........... 1044
§ 311.1. Meaning of the Phrase "Place of Contracting" . . 1044
311.2. What Law Determines the Place of Contracting . . 1046
312.1. Recognizances, Bonds, and Other Contracts under Seal 1046
312.2. Negotiable Instruments......... 1047
312.3. Corporate Shareholders' Contracts...... 1050
313.1. Renewal Instruments.......... 1051
314.1. Formal Contract Delivered by Mail...... 1053
315.1. Delivery by Agent........... 1053
316.1. Delivery in Escrow........... 1054
317.1. Insurance Policy Delivered by Mail...... 1054
317.2. Collateral Contracts in Insurance Policy .... 1055
318.1. Policy Delivered by Agent........ 1056
319.1. Policy Mailed to Broker......... 1058
320.1. Accommodation Paper.......... 1059
321.1. Official and Statutory Bonds........ 1062
322.1. Accounts Stated ........... 1062
323.1. Informal Unilateral Contracts....... 1064
323.2. Informal Contract to Compensate or Reimburse Agent 1066
324.1. Contract of Guaranty.......... 1068
325.1. Informal Bilateral Contracts........ 1069
326.1. Contracts Accepted by Mail or Telegraph .... 1071
326.2. Contract Accepted by Telephone....... 1073
327.1. Acceptance by Silence.......... 1073
328.1. Contract Made by Agent......... 1075
331.1. Contract Made by Unauthorized Agent..... 1076
Topic 2. Creation of a Contract.......... 1077
§332.1. Confusion of Thought on This Subject..... 1077
332.2. Rule of Choice of Law by Parties...... 1079
332.3. Rule of Place of Performance........ 1086
332.4. Rule of Place of Making......... 1090
332.5. History of the Doctrine......... 1092
332.6. Plan of Treatment of the Authorities...... 1100
332.7. England.............. 1101
332.8. English Colonies and Dominions....... 1105
332.9. The Federal Courts........... 1105
332.10. Alabama.............. 1118
332.11. Arizona.............. 1121
332.12. Arkansas.............. 1121
332.13. California............. 1124
332.14. Colorado.............. 1125
332.15. Connecticut............. 1125
332.16. Delaware............. 1126
332.17. District of Columbia.......... 1127
332.18. Florida.............. 1128
§ 332.19. Georgia..............1128
332.20. Idaho..............1130
332.21. Illinois..............1131
332.22. Indiana..............1133
332.23. Iowa...............1135
332.24. Kansas..............1136
332.26. Kentucky.............1137
332.26. Louisiana.............1139
332.27. Maine..............1140
332.28. Maryland.............1141
332.29. Massachusetts............1142
332.30. Michigan.............1144
332.31. Minnesota.............1146
332.32. Mississippi............ . 1147
332.33. Missouri..............1149
332.34. Montana..............1152
332.35. Nebraska.............1152
332.36. New Hampshire............1153
332.37. New Jersey.............1154
332.38. New Mexico.............1155
332.39. New York.............1155
332.40. North Carolina............1158
332.41. North Dakota............1159
332.42. Ohio...............1160
332.43. Oklahoma.............1161
332.44. Oregon..............1161
332.45. Pennsylvania............1162
332.46. Rhode Island............1163
332.47. South Carolina............1164
332.48. South Dakota............1164
332.49. Tennessee.............1165
332.50. Texas...............1166
332.51. Vermont..............1167
332.52. Virginia..............1168
332.53. Washington.............1168
332.54. West Virginia............1169
332.55. Wisconsin.............1169
332.56. Wyoming.............1170
332.57. Summary............. 1171
333.1. Mutual Assent............1174
333.2. Consideration............1176
333.3. Capacity..............1176
334.1. Formalities: Statute of Frauds.......1181
334.2. Other Formalities...........1183
336.1. Formalities for Negotiable Instruments.....1185
§ 337.1. Contracts Limiting Liability of Carriers and Telegraph
Companies.............1187
340.1. Contracts Relating to Real Estate......1190
342.1. Contracts of Agency or Partnership......1192
345.1. Act of Agent or Partner.........1193
345.2. Principal's Relation to Law of State of Agent's Action. 1196
346.1. Meaning of Interpretation and Obligation .... 1199
346.2. Interpretation............1201
346.3. Obligation: Negotiable Instruments......1205
346.4. Obligation: Contract of Insurance......1210
346.5. Obligation: Contracts to Sell Personalty .... 1215
346.6. Obligation: Contracts concerning Land.....1216
346.7. Obligation of Carrier..........1219
346.8. Obligation: Miscellaneous Contracts......1221
347.1. Fraud, Duress, or Mistake........1225
347.2. Legality..............1226
347.3. Gambling Contracts..........1237
347.4. Usury..............1241
347.5. Enforcement of Arbitration Agreements.....1245
347.6. Enforcement of Arbitration Awards......1249
Topic 3. Transfer of Contractual Rights........1250
§ 348.1. Place of Assignment..........1250
348.2. Assignability............1251
350.1. Validity of Assignment.........1253
351.1. Capacity of Assignor and Assignee......1255
352.1. Formalities of Assignment.........1255
353.1. Effect and Obligation of an Assignment.....1256
354.1. Priority among Assignees.........1257
Topic 4. Performance of Contract..........1259
§355.1. Place of Performance..........1259
359.1. Performance of Condition or Exercise of Option . . 1260
360.1. Illegality of Performance.........1261
360.2. Impossibility............1262
360.3. Miscellaneous Excuses for Non-Performance . . . 1264
361.1. What Amounts to Payment........1268
361.2. Mode and Details of Performance......1268
362.1. Exact Time for Performance, and Postponement . . 1269
364.1. Medium of Payment..........1270
365.1. Payment by Negotiable Instruments.....1271
366.1. To Whom Performance Should Be Rendered . . . 1271
368.1. Application of Payments.........1272
369.1. Presentment, Demand, Protest, and Notice .... 1272
370.1. Breach and Right of Action........1272
Topic 5. Discharge of a Contract without Performance .... 1275
§373.1. Rescission............. 1275
374.1. Release.............. 1275
374.2. Discharge of Joint Debtor or Surety...... 1277
374.3. Discharge of Obligation of Corporation..... 1278
375.1. Discharge in Bankruptcy......... 1278
375.2 Discharge in Insolvency......... 1280
375.3. Discharge of Obligation to a Deceased Person . . . 1281
375.4. Bibliography............ 1282
CHAPTER 9. WRONGS............... 1285
§ 377.1. Introduction............. 1286
Topic 1. Tort................ 1287
§377.2. Place of Wrong............ 1287
378.1. Necessity of Cause of Action........ 1288
378.2. Law Governing Right of Action for Tort .... 1289
378.3. Recovery Where Law of Place of Wrong Allows It . 1290
378.4. Action Not Allowed at the Place of Wrong . . . .1290
378.5. English Doctrine........... 1292
379.1. Negligent Tort............ 1293
380.1. Rules and Standards of Care........ 1294
383.1. Causation............. 1296
384.1. Enforcement of Foreign Right of Action .... 1298
385.1. Contributory Negligence......... 1298
385.2. Comparative and Computed Negligence..... 1299
385.3. Proof of Contributory Negligence...... 1300
386.1. Liability to Servant for Tort of Fellow-Servant . . 1301
388.1. Affirmative Defence.......... 1302
389.1. Discharge of Action for Tort........ 1303
390.1. Survival of Action........... 1304
Topic 2. Damages for Death........... 1305
§ 391.1. Law Governing Right of Action....... 1305
392.1. Suit in Any State........... 1307
392.2. Action Differs from That of Forum...... 1308
392.3. Attempt to Restrain Suit Abroad...... 1311
393.1. Damages, How Distributed........ 1312
395.1. Suit by Person Designated........ 1312
396.1. Suit by Personal Representative....... 1313
397.1. Limitation of Action.......... 1316
Topic 3. Workmen's Compensation Act........ 1317
§398.1. Nature of Compensation Act........ 1317
398.2. Recovery by Act of Place of Hiring...... 1318
398.3. Localization of Enterprise......... 1320
398.4. Later New York Rule.......... 1321
§ 399.1. Law of the State of Injury........ 1321
401.1. State Neither of Hiring Nor of Injury ..... 1322
401.2. Tort Action at Place of Injury....... 1322
401.3. Right to Recover in State of Injury...... 1326
402.1. Effect of Two Acts Governing Injury .... 1327
403.1. Recovery after Recovery Abroad....... 1327
Topic 4. Maritime Torts............. 1328
§ 404.1. Injury in Territorial Waters........ 1328
405.1. Acts Affecting Internal Economy of Vessel .... 1328
406.1. Injuries on the High Seas......... 1329
407.1. Navigation in Territorial Waters....... 1329
408.1. Navigation on the High Seas........ 1330
410.1. Injury by Collision on the High Seas..... 1330
411.1. Limitation of Liability for Maritime Injury . . . 1332
411.2. General Average........... 1332
Topic 5. Damages.............. 1332
§412.1. Nature of Damages........... 1332
412.2. Damages for Tort........... 1333
412.3. The Federal Employers' Liability Act..... 1333
413.1. Damages for Breach of Contract....... 1333
414.1. Damages for Breach by Telegraph Company . . . 1334
416.1. Breach of Mercantile Obligation....... 1335
418.1. Rate of Interest Allowed as Damages..... 1335
418.2. Rate of Interest............ 1335
419.1. Interest on Damages for Injury to Property. . . . 1338
420.1. Interest on Judgments.......... 1338
421.1. Penal Damages............ 1339
422.1. Agreed or Liquidated Damages....... 1340
423.1. Damages for Failure to Pay Money of a Foreign State 1340
424.1. Exchange on Foreign Cause of Action..... 1340
424.2. Note from Harvard Law Review....... 1341
Topic 6. Crime............... 1349
§ 425.1. Jurisdiction to Punish Crime........ 1349
425.2. Act Connected with the State....... 1349
425.3. Failure to Act............ 1350
426.1. Offence by National Abroad........ 1351
426.2. Offence on Vessel or on Border Seas...... 1351
428.1. Place for Punishing Offence: Single Act..... 1352
428.2. Offences Connected with Property...... 1353
428.3. Forgery and Uttering.......... 1355
428.4. Abandonment of Family......... 1355
428.5. Crime Involving Cause and Result...... 1356
428.6. Jurisdiction to Extend Criminality by Statute . . . 1358
428.7. Any Part of the Crime Committed in State .... 1359
428.8. Commission of Crime by an Agent...... 1359
428.9. Bibliography............ 1361
CHAPTER 10. FOREIGN JUDGMENTS ........... 1363
Topic 1. Judgments.............. 1364
Title A. Recognition of a Foreign Judgment...... 1364
§ 429.1. Nature of Judgment.......... 1364
429.2. Impartial Court............ 1365
429.3. Response to Pleadings.......... 1366
429.4. Opportunity to Be Heard......... 1367
429.5. Jurisdiction of the Court......... 1369
429.6. Presumption of Jurisdiction........ 1371
430.1. Recognition of Right Created by a Judgment . . . 1371
431.1. Error in Law or Fact.......... 1372
432.1. Procedural Error........... 1374
432.2. Judgment Void Where Rendered....... 1375
432.3. Defect of Competence of Court....... 1377
Title B. Enforcement of a Foreign Judgment...... 1377
§ 433.1. Execution on Foreign Judgment....... 1377
434.1. Money Judgment........... 1379
434.2. The Doctrine of Reciprocity........ 1381
434.3. Criticisms of Reciprocity......... 1385
434.4. Natural Justice............ 1389
434.5. No Action to Enforce Foreign Judgment .... 1390
435.1. Judgment Must Be Final......... 1390
435.2. Judgment for Alimony.......... 1392
436.1. Amount of Judgment Must Be Fixed..... 1394
437.1. Unconditional Judgment......... 1395
437.2. Alternative Judgment.......... 1396
438.1. Appeal.............. 1397
439.1. Permanent Injunction against Exercise of Right . . 1399
440.1. Impeachment of Foreign Judgment for Fraud . . . 1401
440.2. Impeachment of Judgment of Foreign Country. . . 1402
440.3. Bill for Injunction........... 1403
440.4. What Constitutes Fraud......... 1403
441.1. Amount of Judgment.......... 1406
442.1. Judgment on Judgment......... 1407
443.1. Governmental Claims.......... 1408
444.1. Foreign Judgment upon Penal Claim..... 1411
445.1. Judgment against Public Policy....... 1412
446.1. Full Faith and Credit and Public Policy .... 1413
449.1. Foreign Decree Not for Money....... 1416
450.1. Nature of Res Judicata.......... 1419
450.2. Fact Finding in a Judgment of Another State Binds Parties.............. 1420
450.3. Fact Finding in Judgment in Rem...... 1420
450.4. Who Are Privies to the Parties....... 1421
450.5. Who May Take Advantage of Res Judicata . . . 1422
§450.6. Who Are Bound: Minors......... 1422
450.7. Decree for Custody of Child........ 1423
450.8. Title of Land............ 1423
450.9. Res Judicata of Jurisdictional Fact...... 1424
450.10. Cause of Action Merged in Judgment..... 1425
450.11. Former Judgment Not on Merits....... 1425
450.12. Judgment on Non-Suit.......... 1425
450.13. Issue Must Appear or Be Proved....... 1426
450.14. Full Effect of Judgment in Rem....... 1426
450.15. No Merger in Real Action......... 1427
450.16. No Merger in Judgment of Foreclosure..... 1427
450.17. No Merger in Second Judgment....... 1427
450.18. Different Right Now Involved........ 1428
450.19. Election in Another State......... 1429
450.20. Lis Pendens............. 1429
450.21. Judgment as to Personal Quality....... 1429
Topic 2. Quasi-Contractual Obligations........1429
§452.1. Compensation for Services.........1429
Topic 3. Alimentary Duties............1430
Title A. Filiation Orders............1430
§ 454.1. Bastardy Proceedings..........1430
Title B. Support.............. 1432
§457.1. Support of Minor Child ........ 1432
457.2. Support of Adult Child.......... 1433
457.3. Support of Wife............ 1434
Title C. Widow's Allowance...........1434
§ 461.1. Widow's Allowance...........1434
Title D. Alimony..............1435
§ 462.1. Alimony Allowed in Foreign Court......1435
462.2. Bibliography.............1438
VOLUME THREE
Administration and
Procedure
CHAPTER 11. ADMINISTRATION OF ESTATES ........1441
Topic 1. Administration of Decedents' Estates......1444
Title A. Appointment of Administrator and Probate of Wills . . 1444
§ 465.1. Administrations of Various Kinds...... 1444
465.2. History of Administration......... 1445
465.3. Ancillary Administration......... 1447
465.4. Distribution without Administration...... 1448
466.1. Relation between Administrators....... 1449
467.1. Appointment of Administrator at Domicil of Decedent 1449
§ 467.2. Appointment of Administrator Where Assets Are . . 1450
467.3. Appointment of Administrator at Domicil of Debtor . 1452
467.4. Debtor Temporarily Present........ 1453
467.5. Garnishment of Foreign Debtor....... 1456
467.6. Appointment of Administrator to Sue for Wrongful
Death.............. 1457
467.7. Appointment of Administrator Where Land of Deceased Is................ 1461
467.8. Claim against Government or Any Royalty . . . 1462
468.1. Administration by Law of State of Administration . . 1462
469.1. Probate at the Domicil......... 1463
469.2. Probate in Another State......... 1464
470.1. Effect of Judgment on Validity of Will..... 1465
Title B. Collection of Chattels and Claims....... 1467
§471.1. Preliminary Discussion......... 1467
471.2. Domiciliary Representative as Universal Successor . 1467
471.3. Policy to Protect Local Creditors....... 1470
471.4. Localization of Assets.......... 1473
471.5. Situs of Tangible Personal Property for Purpose of Administration............ 1476
471.6. Thing outside the State Temporarily..... 1476
471.7. Bonds.............. 1479
471.8. Negotiable Instruments......... 1480
471.9. Bank Deposit............ 1487
471.10. Insurance Policy . ......... 1488
471.11. Judgment Debts...........1492
472.1. Administrator Takes Assets to Another State . . . 1494
473.1. Chattel Brought into State after Owner's Death . . 1494
474.1. Administrator Receiving Assets outside His State . . 1497
475.1. Possessor of Chattel Gives It to Foreign Domiciliary Administrator............ 1498
477.1. The Nature of Shares in a Corporation..... 1498
477.2. Effect of Uniform Stock Transfer Act..... 1501
477.3. Administration in State of Charter...... 1503
477.4. Administration of Certificate Where Found .... 1506
480.1. Payment of Debt to Local Administrator .... 1510
481.1. Collection of Claim by Foreign Administrator without Suit...............1510
Title C. Transfer of Chattels and Claims.......1512
§ 482.1. Assignment of Claim by Administrator.....1512
484.1. Transfer of Local Assets to Foreign Administrator . . 1513
Title D. Administration Relating to Land....... 1514
§ 487.1. Lack of Power of Administrator over Foreign Land . 1514
487.2. Administration of Foreign Land....... 1514
488.1. Ancillary Administration of Local Realty .... 1515
§ 489.1. Sale of Land to Pay Foreign Claims......1517
490.1. Right of Heir to Reimbursement.......1518
491.1. Power to Foreign Executor to Sell Land.....1519
492.1. Foreclosure of Mortgage.........1520
493.1. Foreclosure by Assignee of Foreign Administrator . . 1523
494.1. Exercise of Power of Sale in Mortgage.....1525
Title E. Proof and Payment of Claims........1526
§495.1. Proof by Creditors...........1526
496.1. Remission to Domicil without Payment to Creditors...............1527
497.1. Preferences.............1527
498.1. Time for Proving Claims.........1527
500.1. Effect of Part Payment.........1527
501.1. Insolvent Estate...........1528
502. Proportionate Payment of Claims......1528
503.1. Marshalling Assets...........1528
Title F. Suits by and against Administrators......1529
§ 504.1. Suit in State of Appointment........1529
504.2. Suit against Local Administrator.......1529
505.1. Judgment for Administrator on Debt Due Estate . . 1530
506.1. Judgment for Defendant on Suit by Administrator . 1531
507.1. Suit by Foreign Administrator.......1532
507.2. Statutory Power to Foreign Administrators .... 1533
508.1. Rights Accruing after the Death.......1545
509.1. Suit on Mercantile Paper.........1547
510.1. Effect of Judgment against Foreign Administrator . . 1548
512.1. Suit against Foreign Executor or Administrator . . 1552
512.2. Action of Court of Equity to Preserve Assets . . . 1554
513.1. Effect of Appearance by Foreign Administrator . . 1555
514.1. Judgment against Foreign Administrator .... 1556
515.1. Transactions after Death of Decedent.....1558
516.1. Waste or Conversion of Assets.......1558
518.1. Continuance of Jurisdiction over Administrator . . 1559
Title G. Accountability of Administrator.......1560
§ 519.1. Accountability of Administrator.......1560
520.1. Same Person Appointed in Two States.....1561
521.1. Administrator Owing Debt to Administrator, Debtor, or Creditor of Estate..........1563
Title H. Disposition of Balance..........1563
§ 522.1. Disposal of Surplus...........1563
522.2. Legatees and Administrators........1565
523.1. Effect of Unpaid Debts.........1566
524.1. Receiving Administrator's Responsibility .... 1567
524.2. Bibliography.............1568
Topic 2. Receiverships............. 1568
Title A. Appointment of Receiver......... 1568
§526.1. Nature of Receivership.......... 1568
526.2. Appointment of Principal Receiver...... 1569
526.3. Federal Receiver........... 1569
526.4. Statutory Receiver........... 1570
526.5. Assignment to Receiver......... 1570
527.1. Ancillary Receiver........... 1570
529.1. Relation of Receivers to Each Other...... 1573
529.3. Statutory Regulation of Receivers...... 1573
Title B. Collection of Chattels and Claims....... 1574
§532.1. Administration of Chattels......... 1574
533.1. Receiver's Possession Recognized in Other State Where Chattel Taken............ 1574
535.1. Chattels outside the State of Appointment .... 1574
535.2. Foreign Receiver Taking Chattels in State .... 1575
535.3. Carrying on Business.......... 1575
Title C. Transfer of Chattels and Claims by Receiver .... 1576
§547.1. Transfer of Chattel by Receiver....... 1576
548.1. Transfer of Claim by Receiver....... 1576
Title D. Administration Relating to Land....... 1576
§ 549.1. Right of Foreign Receiver to Deal with Land . . . 1576
Title E. Proof and Payment of Claims........ 1577
§ 552.1. What Claims Provable.......... 1577
553.1. Payment of Claims or Transmissal of Assets . . . 1577
554.1. Preferences............. 1577
559.1. Proportionate Payment in Insolvency..... 1577
Title EE. Competition of Receiver and Creditors..... 1578
§ 560A.1. Competition of Foreign Receiver and Domestic Creditors ............... 1578
560A.2. Competition of Foreign Receiver and Foreign Creditors 1579
560A.3. Competition of Foreign Receiver and Creditors from His Own State............ 1579
560A.4. Statutory Successor May Compete with Creditors . . 1581
560A.5. Foreign Receiver Claiming as Assignee..... 1582
560A.6. Foreign Receiver Claiming as Legally Entitled . . . 1582
Title F. Suits by and against Receiver........ 1584
§ 562.1. Judgment for Receiver.......... 1584
564.1. Suit by Receiver........... 1584
564.2. Remedy Where Receiver Not Allowed to Sue ... 1586
564.3. States Allowing Suit.......... 1586
565.1. Suit by Receiver as Assignee........ 1588
566.1. Suit to Enforce Shareholder's Liability..... 1588
567.1. Statutory Successor.......... 1588
§ 568.1. Suit on Transaction Arising after Appointment . . 1589
571.1. Suit against Foreign Receiver........1589
Title G. Accountability of Receiver.........1589
§ 579.1. Accountability of Receiver to Court......1589
Title H. Disposition of Balance..........1590
§ 581.1. Disposition of Balance in Ancillary State .... 1590
583.2. Bibliography............1590
Topic 3. Guardianship............. 1591
§ 583A.1. Guardianship of Property......... 1591
583A.2. Power to Sell Real Estate......... 1592
583A.3. Suits by and against the Guardian or Ward . . . 1593
583A.4. Accounting............. 1595
583A.5. Removal of Foreign Estate to Ward's Domicil . . . 1595
CHAPTER 12. PROCEDURE .............1598
Topic 1. Distinction between Substance and Procedure .... 1599
§ 584.1. Substance and Procedure.........1599
584.2. Determination whether Question One of Procedure . 1601
Topic 2. Proceedings in Court........... 1601
§586.1. Proper Court............ 1601
587.1. Form of Action............ 1601
588.1. Parties.............. 1603
588.2. Joinder of Parties........... 1603
589.1. Service of Process........... 1604
590.1. Methods of Securing Obedience to Court .... 1604
591.1. Commencement of Action......... 1605
593.1. Set-Off and Counterclaim......... 1606
594.1. Mode of Trial............ 1607
595.1. Proof of Facts. Determination and Application of Standards............. 1609
595.2. Presumptions............ 1610
595.3. Burden of Proof............ 1611
595.4. Assent to Limitation in Contracts of Carriage . . . 1612
596.1. Witnesses............. 1613
597.1. Evidence.............. 1614
598.1. Oral Evidence............ 1614
599.1. Integrated Contracts.......... 1615
600.1. Execution of Judgment.........1615
600.2. Exemption Laws in Garnishment Proceedings . . . 1616
Topic 3. Conditions of Maintaining Suit........ 1618
§602.1. Statute of Frauds........... 1618
603.1. Statute of Limitations of Forum...... . . 1620
604.1. Foreign Statute of Limitations....... 1621
604.2. Statute Providing Action Barred....... 1622
§ 604.3. Statutes which "Extinguish the Right"..... 1622
604.4. Foreign Judgments........... 1625
604.5. Statute of Limitations in English Law..... 1626
604.6. Statute of Limitations in Federal Courts .... 1627
605.1. Time Limitations on Cause of Action..... 1627
606.1, Limitations of Amount Recoverable...... 1629
Topic 4. Access to Courts............ 1630
§ 607.1. Actions by Sovereigns and Aliens...... 1630
608.1. No Form of Action Provided........ 1631
609.1. Action Would Result in a More Onerous Duty . . . 1631
610.1. Enforcement of Foreign Revenue Laws in England . 1633
610.2. Enforcement of Foreign Revenue Laws in the United States.............. 1635
610.3. Actions Based on Proprietary Claims..... 1638
611.1. Actions to Enforce Statutory Liability of an Officer as Director..............1639
611.2. Action on Death Statute.........1641
611.3. Miscellaneous Actions.......... 1645
612.1. Action Contrary to Public Policy....... 1647
613.1. Real Action for Land.......... 1652
614.1. Action for Trespass on Foreign Land..... 1652
615.1. Injury to Foreign Land......... 1659
616.1. Action on Covenant Running with Land .... 1660
617.1. State Creating Right.......... 1660
619.1. Prior Action Pending in Another State..... 1662
620.1. Prior Judgment............1663
Topic 5. Foreign Law......... . . . . 1663
§ 621.1. Nature of Problem........... 1663
621.2. Judicial Notice of the Law of a Foreign Country . . 1664
621.3. Judicial Notice of the Law of Sister State .... 1665
621.4. Pleading Foreign Law.......... 1667
621.5. Proof of Foreign Law.......... 1669
621.6. Proof of Foreign Law in the English Courts . . . 1673
622A.1. Presumptions of Foreign Law........ 1675
622A.2. Presumptions of Law of a Foreign Country .... 1676
623.1. Presumption of the Law of Sister State..... 1682
624.1. Judicial Notice in the Federal Courts..... 1686
625.1. Appellate Courts........... 1688
625.2. Bibliography............ 1689
TABLE OP CASES ................1691
APPENDIX — HISTORY AND DOCTRINE OP THE CONFLICT OF LAWS . . 1879
INDEX...................1977
PREFACE
I
Assistance Acknowledged
This book could not have been written without the eager cooperation of forty classes of students. In the discussions in the classroom one's mind is cleared more than in a score of years of private investigation. One submits one's conclusions to the class and the class pick out the weak points, ruthlessly out-argue an illogical rule or one not fairly based upon ethics or the requirements of society. It used to be said of the author that as fast as his class punctured a false theory he was observed propounding a new one. And this was true; for if his conclusion proved untenable he at once revised it in the light of the destructive criticism to which it had been subjected. When a conclusion was reached which could not be successfully attacked by a class one took it provisionally to be sound. In this way forty classes have at least taught the author what he did not know and in that way made sure within the bounds of reasonable error that conclusions which had stood such criticism were fairly sound.
The result of this constant trial and error has been to build up in the author's mind a systematic conception of the Conflict of Laws which he endeavored to set forth in the Restatement of the Conflict of Laws by the American Law Institute of which he was Reporter. Some of his conclusions proved untenable, and were changed by his Advisers, to whom he owes a second great debt for his knowledge of the Conflict of Laws. A number of changes have been made by other agencies of the Institute, especially in Chapters 10 and 11 of the Restatement, which seem to him entirely contrary to the general system which he has constructed. He is therefore taking the liberty of advancing his own opinion, though with due reference to the fact that it has not found acceptance by the American Law Institute.
Of all the Advisers on the Conflict of Laws, the one who has been of most constant use to the Reporter in Chapters 2, 3,
and 4, is his colleague, Professor Austin W. Scott. His advice in the way of presenting the subject and on statements of the law has been followed. In the present work that part of Chapter 4 which deals with Jurisdiction over Persons was principally formulated and written by Professor Scott.
In addition to this assistance, the author is glad to acknowledge the valued aid of the following persons all of whom, except the last, have been his pupils.
The General Bibliography was brought down to date by Mr. Charles Horsky.
In that part of Chapter 4 which deals with Jurisdiction over Things the author was assisted by his pupil, Miss Marjorie Hurd of the Boston Bar.
Chapter 4A owes a great deal to the thesis of Professor A. L. Harding, afterwards published under the title "Double Taxation of Property and Income." Out of the conferences on Professor Harding's thesis has grown an increased knowledge of the difficult subject.
A large part of Chapter 5 was written after investigation under the author's direction by Messrs. John Laughlin of the Pittsburgh Bar, and Daniel M. Sandomire and Randolph H. Guthrie of the New York Bar.
In Chapter 6 great help was derived from the work of Allen E. Throop, Esq., who was the author's assistant in blocking out of the chapter. Aid was also received by conferences with Henry E. Foley of the Boston Bar, as a result of which his thesis on "Corporations Chartered in More than One State" was prepared.
That part of Chapter 7 which has to do with Conditional Sales was carefully worked over by Daniel M. Sandomire, Esq., of the New York Bar.
Chapter 8 was largely blocked out by Nathan Green, Esq., of the New York Bar and was finally formulated by John Mulford of the Pennsylvania Bar.
Chapter 9 was to a considerable extent written by Nathan Witt of the New York Bar. The author has also been assisted by the thesis of his pupil, Professor William H. Hastie. And help was given by Dr. P. G. Phillips.
Chapter 10 was worked over by Bernard E. P. McCaffery of the New York Bar.
Chapter 11 was worked up by the author's colleague and assistant, Professor Calvert Magruder.
In Chapter 12 the author has taken advantage of the excellent work of Edgar Ailes, Esq., who was not his pupil but at least his correspondent, and a pupil of his pupil Professor Herbert F. Goodrich.
In addition to these there have been numerous aids without which the book could not have been written. Especially to Gladys E. Chase, his secretary for many years, is due the author's gratitude for patient and intelligent secretarial work.
The Milton Fund of Harvard University helped the author to employ several of his assistants by a grant, renewed a second year.
Lest the reader should minimize the work remaining for the author to do, let it be added that he himself has spent a large part of his time for the last twenty years in collecting and analyzing authorities and in formulating statements; and that the actual preparation of the final draft of this work has occupied most of his working time for more than two years. Writing a modern legal treatise may or may not be for the good of the profession; it is certainly not profitable for the author.
II
Nature of this Work
This work is to too great an extent a mere digest. One who attempts to write a book for lawyers in these days becomes overwhelmed with his material, and that is especially true in this book. The author has attempted to give his own views on each subject, but he has been forced to make most of his statements a mere summary of the effect of decisions. This, however, will be no detriment to the busy lawyer who has to use it.
The author has attempted to include every decision based upon the Conflict of Laws, but he knows that he has not done so by a considerable proportion of all decisions. He would be happy to be assured that he had included half the decisions. There are peculiar difficulties in assembling the cases on this subject. There is no heading under which all the cases are grouped in any of the ordinary books of reference. One must find his material by a search in scores of digest headings; and nothing but a word to word reading of the "American Digest," which one believes would take more years than the author has to spend on it, could insure completeness. The cases cited have been brought down in the first volume to January 1, 1934; in the second volume to July 1, 1934; and in the third volume to January 1, 1935. As it has taken a year actually to print the work, this progressive examination has become necessary.
One difficulty in working over the material is that it is now formulated as a whole subject for the first time. The third edition of Wharton's "Conflict of Laws," prepared by the Lawyers' Cooperative force, was well done, and collected the authorities up to the time of its publication, which was 1906. It is probable that more than half the cases on this topic have been decided since the date of its publication. Story's book, first published in 1834, just 100 years ago, is classic, but can hardly be relied upon even as an analysis of the subject; since Story was forced to depend for a large part of his work upon foreign authorities, and, as will be insisted upon in this work, our Conflict of Laws is a branch of our Common Law and has
no more relation to the Conflict of Laws of the Continent than our law of Contracts has to the law of Obligations of France or Germany. Dicey's book, first edition 1896, is excellent; but being based on English authorities alone its analysis is rather simple. It is the enormous bulk of our case law which has enabled American scholars to analyze the Conflict of Laws and develop it in a way which is impossible to an English author who has only a few decisions and some judicial conjectures to deal with.
III
History of this Work
This treatise on the Conflict of Laws was begun twenty years ago; but the burdens of war time on those too old to do active work, and therefore trying to carry on as law teachers, was great, and soon after the war ended the American Law Institute was formed and the author was appointed Reporter on the Conflict of Laws. This work has taken most of his time up to two or three years ago.
The real history of the work begins, however, forty years ago when the author began to study the subject with the particularity that a teacher must give to his study, and to submit his conclusion to the cleansing fire of class criticism. The efforts of forty classes show one the way. After ten years the author began his treatment of the subject for lawyers in practice. An analysis was made in 1908 or thereabout. An introductory part was published in 1916. This received a little criticism, and on the whole criticism less enlightening than that of a class. The general bibliography and the introductory chapter have been placed in this volume with necessary additions and changes. Those parts of the preliminary book of 1916 which consider the history of thought on the subject and the present doctrine have not been inserted here. Scholars desiring them may consult the earlier work.
The actual preparation of the author's material began with the treatises prepared for the American Law Institute, about ten years ago. The final drafting of the text began a little more than two years ago.
Thus slowly is one's plan formed; and the final drafting of the work has been too rapid. But one who hears the evening bell must hasten his work, if he is to finish it.
IV
Apologia
The author's legal principles have been criticised by a current but ephemeral school of legal philosophy as conceptual and legalistic. If this means, as it seems to do, that they are the fruit of thought and lawyerlike, the author accepts the criticism as in the highest degree honorable. If it is intended to charge the author with inventing each principle and then deducing from it rules based rather on logic than on reality, the criticism is untrue.
The author believes that law is a traditional manner of thought about right behavior; the lawyers and judges are experts in it. To learn it the process seems to be as follows: First, many decisions are examined, before a provisional opinion is formed, followed by discussion on the basis of ethical, economic, and social considerations as well as the historical course of the law. Error having been found in the first opinion, an opinion is formed, which in absence of being shown false is accepted as true. This process of trial and error, which is the true scientific process, as the author understands it, is the method which appears to be that of every lawyer desiring to argue a case or to make a brief.
One cannot deny that most of the statements in this work will be dogmatic. Does not the Bar desire dogmatic statements? It is true that the principles herein developed rest in the last analysis only on the authority of the author; but it is believed that a lawyer goes to a treatise principally to find the state of judicial authority on a topic, and if he seeks anything else it is, such as it may be, of the author for the proposition mentioned. In general, therefore, the author will state his conclusions dogmatically, particularly when he may rest them on the authority of the American Law Institute. When he differs from the form of statement of the Law Institute he will so state.
They reckon falsely who think of the author as an exponent of a school of legal philosophy. Philosopher he is none; nor need he apologize for this fact in a book written for lawyers. One deals in facts only. One studies decisions, which are facts of our law, and the inferences from these which after forty years study and teaching seem to be necessary. The value of this book will depend upon how far the author's inferences are justified. If they appear on the whole to be justified the book will have served its purpose.
VI
Relation of this Work to the
Restatement
This work is printed in the form of a Commentary on the Restatement of the Conflict of Laws issued by the American Law Institute. The author has therefore followed the numbering of the sections in the Restatement. Each section in this book is doubly numbered. Before the decimal point the numbering is that of the section in the Restatement. After the decimal point comes the serial number of the sections commenting upon the Restatement section. Certain parts of the work cover subjects not taken up in the Restatement, such as Section 9A, on Rights, and Chapter 4A, on Jurisdiction to Tax. The same form of numbering sections, however, has been carried out in these portions of the work. Chapter 6, on Corporations, goes considerably beyond the scope of the similar chapter in the Restatement, and is in fact a second edition of the nonstatutory portion of the author's treatise on Foreign Corporations.
This form of writing has its advantages. It at once directs attention to the Restatement; and the Restatement has been worked over by the most extraordinary group of teachers of the subject, of judges of distinction, and of lawyers who stand at the head of their profession, ever collected for the purpose of developing the Conflict of Laws of common-law countries. No lawyer can safely give an opinion or argue a question of law without considering the Restatement. To such as need a commentary, this work is offered, ready for the purpose so far as its division into sections is concerned.
But there are disadvantages also in this plan. The Restatement was not prepared as a basis for a treatise. The first four chapters were, to be sure, based upon an "accompanying treatise" prepared to fit the Restatement; a plan that was soon abandoned. Some of the later chapters were written after the Restatement took shape. Chapter 6, however, is based upon the author's treatise on Foreign Corporations, written thirty years ago; and it ill fits with the form of the Restatement. Even there, however, it is believed that a study of the table of sections at the beginning of the chapter will enable the user of the Restatement to find what he wishes.
NELSON, HORACE. Selected Cases, Statutes and Orders Illustrative of the Principles of Private International Law as Administered in England, with a commentary. London, 1889; pp. xxiii, 483.
A collection of English cases on the subject, with a commentary which is substantially an annotation of the English cases and statutes.
PELLERIN, PIERRE. A Digest of Cases Decided in France Relating to Private International Law. London, 1915; pp. 134.
About 300 cases arranged in order of subject matter, from arbitration to wills, and with a brief note on the French law bearing on each decision.
A TREATISE
ON THE
CONFLICT OF
LAWS
CHAPTER 1
INTRODUCTION
Topic 1. Subject Matter and Meaning
Section 1. Subject Matter of Conflict of Laws.
§ 1.1. Definition of the Subject. — The branch of the law called for convenience The Conflict of Laws deals primarily with the application of laws in space.[1] Whenever a question is raised of applying to a juridical situation the law of one or of another country, the question so raised must be settled by the principles of the Conflict of Laws. Thus when parties married in one state are living together in another, when property situated in one state is to be transferred in another, when a contract is made in one state to be performed in another, or when suit is brought in one state for breach of an obligation arising in another, a juridical situation arises where the law applicable might be in doubt; and this doubt is settled by the principles of the Conflict of Laws.
As Bustamante well shows,[2] the question presents itself in a two-fold aspect: what law created a certain right; or, what right could a certain law create? The older writers confined themselves to the first phase of the question; while the later writers tend more and more to fix their minds on the second.
Perhaps this distinction may be made clearer by a few illustrations. Suppose John appears in the state of New York with a horse, having ridden into the state from Massachusetts. Thomas appears from Massachusetts and makes a claim upon the horse, founding his claim upon a transaction
[1]A similar topic, The Application of Laws in Time (Zeitliche Gränzen, Savigny 49), has no generally accepted name; and though it makes use of similar principles it is not usually regarded as sufficiently important for separate treatment. Its general principle is that of the non-retroactivity of laws. See Affolter, Inter-temporal Law; Cavaglieri, Diritto Int. privato e diritto transitorio (1904). [2] Bustamante, 95. in Massachusetts. The older writers would have asked, by what law are the rights of Thomas in the horse to be judged? The later writers would be more likely to ask, did the law of Massachusetts, under which Thomas claims his right, have power to create it? Or suppose John makes an agreement in New York, fails to perform it, is sued upon it, and sets up the defence that he is an infant by the law of Massachusetts, his domicil: it might be asked, by what law is his capacity to be determined; or, on the other hand, does the law of Massachusetts have the power to make him incapable in New York.
This distinction might be thought merely verbal, and dismissed as of no importance. But the way in which the subject is put may indicate a fundamentally correct or incorrect conception of the principles underlying the subject, as will hereafter be seen. The older form seems to rest upon the theory that the applicability of law to the facts of the case may properly be determined as of the moment of litigation. The more modern form, on the other hand, is the natural expression of the principle, which seems indisputable, that the applicability of law to the juridical facts must be determined as of the time of their occurrence. Some proper law must have governed the juridical situation at the moment of its occurrence; the effort of the court is to determine what that law was; and that involves a question of the power of some particular law to extend to and rule the juridical situation.
§ 1.2. Other Definitions. — Definitions of the subject of our study are almost as numerous as the authors who have written upon it. No attempt will be made to repeat all the definitions which have been proposed. They may roughly be divided into three classes.
First: Definitions which emphasize the solution of the conflict of two laws, either of which in the nature of things might be applicable. Such is the definition of Asser:[l] "The body of the principles which determine what law is applicable either to the juridical relations between persons belonging to different states or to acts done abroad, or in short in all cases where it is a question of applying the law of one state within the territory of another." The definition of von Bar [2] is of the same sort: "Private international law determines the applicability of the legal systems and the jurisdiction of the agencies — the courts and magistrates — of different states in private legal relations." So Foelix:[3] "The body of rules by which are judged the conflicts between the private law of different nations." Story:[4] "The jurisprudence arising from the conflict
[1] §1.
[2] § 1, p. 1.
[3] p. 2.
[4] p. 9.
of the laws of different nations in their actual application to modern commerce and intercourse." Pillet: [1] "The science which creates juridical regulations for international relations of a private nature."
Second: Definitions which emphasize the difference in nationality of the subjects of the rights involved. Such is Fiore's definition:[2 ] "The science which establishes the principles for resolving conflicts of laws, and for regulating the mutual relations of the subjects of different states." Similar definitions are those of Torres Campos, Pedroza, and de Martens.
Third: Definitions which emphasize the limitation of legislative jurisdiction. Such is another definition of Pillet.[3] "A system of conciliation, destined to fix the rational limits of the respective legislative jurisdiction [of national laws] in all cases where international commerce has resulted in creating a conflict between their principles." Savigny [4] describes the subject as "the local limitations of the authority of the rules of law." Rolin [5] defines it as "The body of rules which define the rights of foreigners, and the respective jurisdictions of the law of different states so far as private rights are concerned." Bustamante [6] has a similar definition: "The body of principles which determine the limits in space of the legislative jurisdiction of states, when it is applied to juridical relations which might be submitted to either jurisdiction"; or more concisely, "The science which limits legislative capacity in space."
The curious may be interested in further essays at definition.
"That department of national law which arises from the fact that there are in the world different territorial jurisdictions possessing different laws." [7]
"That branch of the law of a country which relates to cases more or less subject to the law of other countries." [8]
"That portion of the law of each state which determines the conditions in accordance with which legal relations are governed by the principles of some other system of law." [9]
"Principles . . . governing the extra-territorial operation of law or recognition of rights." [10]
[1] Principes, 7.
[2] p. 3.
[3] Principes, 123.
[4] p. 45. [5] i, 12.
[6] i, 10.
[7] Westlake, 1.
[8] Wharton (3d ed.), i, 2.
[9] Harrison in Clunet, 1880, 540.
[10] Dicey, 3.
"The law which has to do with foreigners." [1]
"The law which, having determined nationality, regulates the relations of States so far as concerns the juridical condition of their respective subjects, the efficacy of the judgments of their courts and of the official acts of their officers, and especially the conflict of their laws." [2]
"The body of rules applicable to the solution of the conflicts which may arise between two sovereignties with regard to their respective private laws, or to the private interests of their citizens." [3]
"The rules which should be followed in the conflict of private laws of different states." [4]
"The branch of law which is concerned with private legal relations which contain a foreign element." [5]
"An aspect of private law which involves such juridical relations between individuals as transcend the sphere of national law." [6]
"The legal principles which determine which of several objective private laws of different places are to be applied to a certain private legal relation: the legal principles, in other words, which relate to the applicability in space of private law; the rules for the application of law in space." [7]
§ 1.3. Practical Necessity for This Branch of Law. — International commerce created the necessity for some principle of law which should protect the interests and give effect to the undertakings of the foreigner. As foreign commerce has increased, this necessity has increased with it; and now that our whole manner of life is based upon exchange of products between nations, a body of legal principles to regulate international juridical relations is as supremely needed as a similar body of principles to give effect to ordinary contracts or protect ordinary property. International commerce is necessary to modern civilization; and "international commerce would be impossible if there did not exist a law which has for its object and effect to favor the international extension of human activity." [8] International trade could not be carried on as has now become necessary unless the trader could be assured that he would not be placed absolutely at the mercy of the vagaries or unknown requirements of the local law, but would find a well-established body of law to protect his rights. This body of law is the Conflict of Laws, of which an eminent German author eloquently says: "It protects and assures the
[1] Vareilles-Sommières, i, xxx.
[2] Lainé, i, 17.
[3] Weiss, Manuel, xxx.
[4] Despagnet, 19. [5] Valery, 3.
[6] Jitta, Méthode, 50 (slightly condensed).
[7] Zitelmann, i, 1.
[8] Pillet, 5.
peaceable intercourse of private persons in different nations. In this way, therefore, it maintains the threads, — which, fine as they are, still together will sustain great things, — on which the exchange of goods and of ideas, the mutual respect of nations, and therefore the maintenance of peace, depend." [1]
§ 1.4. Preliminary Topics for Investigation. — While, however, the local application of laws is the principal part of this topic, the difficulties raised cannot be fully solved without a study of certain other legal principles which underlie the solution. In considering how a conflict of laws shall be solved, it is necessary first to study with some care the nature of law; and to delimit the jurisdiction of the various laws which are alleged to apply. The first of these topics is generally dealt with under the title Jurisprudence; the second, under that of Public International Law, or the Law of Nations. It is necessary next to study the nature of Rights, of Acts, and of Remedies, since they are involved in every juridical situation, and a knowledge of their real nature is essential if we would determine the power of law over them. This study also is usually relegated to the science of Jurisprudence, and is thought quite unnecessary as a preparation for the practice of law. Finally, as rights of personal status, according to the common law, depend upon domicil, it is necessary to study with some care the international conception of domicil; again, a topic of International Law, since the meaning of the legal term is fixed by the general consent of nations, and cannot be changed at the will of a single nation.
§ 1.5. The Nature of Law as a Necessary Preliminary Study. — The necessity of studying the nature of law has already been indicated. The lawyer engaged merely in the practice of a single positive law will not find this necessary, and will even ignore its value. For him, the law is contained in the statute-books and the reports of his own state; or if he studies other sources, it is only to supplement these authoritative books with less important learning. He need not trouble himself with inquiries as to the nature of law; he is only concerned with its content. But if he is obliged to step outside the narrow circle of his own positive law, and take into consideration another law, it at once becomes necessary, in order
[1] Bar, Preface, xi.
that each should take its proper place with relation to the other, that their nature should be more fully apprehended. A consideration of the nature of law thus becomes essential; and it at once appears that the word is used, and indeed has been used and understood by every lawyer, in more than one sense. This ambiguity must be removed before the mutual relations of domestic and foreign law can be scientifically determined.
§ 1.6. The Limits of Jurisdiction as a Necessary Preliminary Study. — If we are to apply laws in space, we should first of all delimit the space to which each law is applicable; and as law-giving is a function of sovereignty, this amounts to fixing the limits of jurisdiction. So obvious a proposition seems hardly worth argument; yet few writers on the subject have included this topic in their works. The result has been that many authors have assumed without discussion and proof some untenable theory of sovereign power and extent of legislative jurisdiction upon which their respective doctrines of the Conflict of Laws have been based.
§ 1.7. Rights, Acts, and Remedies as Necessary Subjects for Preliminary Study. — If we are to judge the effect of law upon juridical relations — rights, acts, and remedies — we must first study with care the nature of these conceptions; since the effect of the law must depend upon the nature of the relation to be established. Many works on the Conflict of Laws show the detrimental effect of vagueness in conception of the nature of juridical relations. This vagueness is especially dangerous in the states of the European continent where the same word — ius, droit, Recht — serves to designate law itself and a right created by the law. When vagueness of conception is added to ambiguity of meaning, such errors may be expected as we shall find existent in the works of certain continental writers.
The study of these juridical relations is an exact and a practical study; and it seems necessary to a clear knowledge of the municipal law, as well as of the Conflict of Laws. Many lawyers are inclined to regard studies of this sort as merely academic and unpractical, to call them jurisprudence, and under that term to dismiss them as of no value in the actual practice of the profession. What has already been said must show the fallacy of such notions.
§ 1.8. Nationality and Domicil. — The subject of nationality forms a considerable part of every European treatise on Private International Law. In Weiss' monumental work, for instance, it occupies one of the five volumes. This is necessary in any system where, as in the systems of the Italian and modern French schools, personal rights are based upon nationality. The common law does not base personal rights upon nationality, but upon domicil. It is therefore entirely unnecessary, in an American book upon the Conflict of Laws, to consider nationality at all.
The common law, as will be seen, bases personal status upon the law of the domicil. It is therefore necessary in an American book to substitute the study of domicil for that of nationality.
§ 1.9. Whether Criminal Law Is Included in the Subject. — A question has been raised and much discussed whether the conflict of criminal laws is to be included in the general subject.[1] On the one hand it is argued that criminal law is a portion of the public law, and therefore properly belongs with Public rather than with Private International Law — an argument which a little savors of verbalism, for surely it is not a proper function of the Law of Nations to determine the punishability of an individual for an act done abroad. On the other side it is pointed out that the interests concerned are solely individual, and should be determined by that branch of international law which concerns individual rights. Professor Weiss follows a middle course, and segregates all questions of conflict of criminal laws and procedure under the title of "Droit international criminel." [2]
The truth is, as often happens, both sides are partly right. Those writers who have considered questions of criminal law have usually included in their discussion two distinct topics: punishment for foreign crime, and extradition. The former is clearly a question in which individual rights are chiefly concerned, and is therefore a proper topic of the Conflict of Laws. Extradition, on the other hand, is a process which depends entirely upon the existence and interpretation of treaties be-
[1] For reasons against this inclusion, see Asser, § 1, p. 5; Despagnet, 14-16; Renault, 26; Rolin, i, 16 el seq.; Zitelmann, i, 28. For reasons in favor, see Bustamante, 17; Lainé, i, 11 et seq.
[2] Traité élémentaire, xxxiii.
tween nations, and the only rights directly involved are those of the nations parties to the treaties. Furthermore, the questions which arise have no relation whatever to those considered in the Conflict of Laws. It seems, therefore, that the consideration of extradition should be left to the Law of Nations, while the topic of jurisdiction over crime should form part of the Conflict of Laws; and that course will be pursued in this work.
§ 1.10. Public International Law How Far Included. — As has been seen, some portions of public international law are necessarily included in the scope of this topic. The whole great subject of Jurisdiction has international importance, and so to a less extent has the topic Domicil.
Besides these, other topics of the Law of Nations are often included in the discussion. The subjects of Nationality and Naturalization are usually examined by European authors; [l] and this is for them a necessary study, because rights of personality, according to the codes of most European states, are based upon nationality instead of upon domicil. This doctrine has never been extended by statute to a country governed by our common law. For this reason, as well as because the topics are thoroughly discussed in works on Public International Law, they will not be examined in this work.
Another question, which is commonly included in the Law of Nations but is often also included in works on Private International Law, is the Legal Condition of Foreigners,[2] although, as has been pointed out, there is no conflict possible as to the rights of foreigners because no possible law can be applied to these rights except the law of the country in which they are enjoyed.[3] The question is one of much importance in France and other European countries where civil rights are not regularly extended to foreigners; but in England and America, where all civil rights are now and, with very few exceptions, have long been extended to foreigners, the topic is of no practical importance. It is therefore omitted entirely from our discussion.
[1] e.g., Foelix, Weiss (who devotes the first volume of his longer work to this subject), Laurent, Rolin, Fiore, Bar.
[2] Foelix, Weiss (whose second volume is devoted to this subject), Pillet, Laurent, Rolin, Fiore, Bar.
[3] Pillet, 28.
§ 1.11. Comparative Law How Far Included. — It is often difficult and sometimes impossible, in dealing with a question of the Conflict of Laws, to avoid considering the nature of one or both of the national laws between which the question arises; and some authors have in fact considered such a study as a legitimate part of the subject.[1] Thus for instance the principal "Journal of Private International Law," Clunet's, discusses comparative law as well as the Conflict of Laws.
Strictly speaking, this is no part of our subject. Yet it is often convenient and useful to point out differences in national laws, and this course will sometimes be taken in this work. But all statements of foreign law must lie under suspicion, since an author is dealing with a subject unfamiliar to him, and subject to rapid change. In the words of Bar,[2] "So quickly do laws alter in our own times, every general work upon international law must be taken, as traders say, 'with errors excepted,' and any lawyer who consults the book for the practical purpose of some particular case should be warned to apply to legal specialists for information as to the law of the country in which he happens to be interested."
§ 1.12. Sources of Private International Law. — In enumerating the sources of such a subject as the Conflict of Laws it is necessary to bear in mind that "law" for this purpose has a double meaning. The exact significance of this phrase will be examined later. For the present it is enough to speak, in language common in European works, of the theoretical and the positive law. Theoretical law, as the name indicates, is the body of principles worked out by the light of reason and by general usage, without special reference to the actual law in any particular state. Positive law is the law as actually administered in a particular country.
The sources of the theoretical law are, speaking generally, the opinions of authors and universal custom, i.e., the consensus of civilized states solving the same question in the same way. The study of the legislation and of the decisions of the courts of particular states is of importance only in so far as it results in finding a general agreement upon a proposition of law. As Foelix well says,[3] "Nations recognize no
[1] Laurent, for instance, frequently discusses and compares national laws.
[2] Preface, viii.
[3] Preface to 2d ed.
supreme judge with power to decide, according to abstract and philosophical principles of law, the disputes to which conflicts of different national laws may give rise";.and it is, therefore, useless to look for any more authoritative source of the theoretical law than will be found in the pages of standard works.
The positive law, on the other hand, is based on actual written sources; treaties, legislation, and the decisions of courts, as well as the tenets of the theoretical law.[1] It is a branch of the ordinary private law of each country, and is based upon the same sources as general law.
Besides these two kinds of law recognized by authors generally there is a third sort of law, which is neither merely theoretical nor is it the positive law of any one state. The common basis of the law of the countries of continental Europe is the Roman law. These countries have as a common element a system of law, called by us "civil law," which is equally authoritative in each, but cannot be called positive law in any one state. Engl