to make practically impossible, it may readily be conceived that foreign companies intending to operate in Italy are very much concerned to avoid being classed in the second category, and that considerable ingenuity is exercised in practice to avoid what is usually considered a most undesirable consummation. Moreover, the fact that half the capital of an Italian company has to be deposited at the Treasury, and only the moderate interest derivable from Government securities is available in respect of it, and that— in addition to a tax on immoveables of 33 per cent.1 and a very heavy income-tax, which are of course applicable to foreign corporations in Italy as well as to Italian companies proper-there are several other taxes which are leviable upon the latter alone, it will at once be evident that it is as much to the interest of the Italian Government that all foreign companies in Italy should be considered as Italian under this article, as it must be that of such companies to escape the status in question. Indeed the company law of Italy, as a whole, appears to be of so Draconian a character, besides bringing into the coffers of the fisc under one guise or another so large a portion of the profits of companies incorporated under it, that one is inclined to wonder how Italian companies contrive to exist at all, with any satisfaction to their shareholders, and indeed it is believed that since 1882 the number of companies formed abroad for operation in Italy has enormously decreased.

Such are the principal features of the law of Italy with regard to foreign companies.

If we glance at the legislation of other European states on the same subject we find considerable similarity with the Italian law in some of them.

Portugal, in her Code of Commerce of 1888, has adopted the Italian system bodily, articles 110 and 111 being almost literal translations of art. 230 of the Italian Code. Art. 110. Companies formed abroad but intending to have in the kingdom a branch and to exercise there their principal industry will be considered for all intents and purposes as Portuguese companies, and will be subject to all the dispositions of the present code.'

'Art. 111. Companies legally constituted abroad which establish in the kingdom a branch or any other representation are subject to the dispositions of the present code concerning the registration and the publication of their memorandum and articles, and of the powers of their representatives, in the same manner as Portuguese companies

The Hôtel du Quirinal in Rome, for instance, pays 50,000 lire (£2000) per annum in respect of this tax.

VOL. X.

of the same kind, and with regard to bankruptcy are subject to the terms of art. 745, sect. I.

'The representatives of the companies referred to in the present article assume the same responsibility towards third parties as the directors of Portuguese companies.'

In France foreign companies are governed by the law of May 30, 1857; and, as regards English companies, by the terms of the treaty between Great Britain and France of April 30, 1862, entered into in pursuance of the law of 1857. The system is so far similar to that in force in Italy that all companies whose 'principal establishment' is in France are considered as French companies, and are subject in all respects to French law, although they may have been incorporated abroad, under a foreign law, and although all their shareholders are foreigners1.

In Belgium the system is practically identical with that of France; every foreign company whose principal establishment is in Belgium is subject to Belgian law, even though its memorandum and articles have been drawn up abroad in conformity with a foreign law (Law of the 18th of May, 1873, art. 129), and the memorandum and articles, balance-sheets, &c., of foreign companies establishing a branch or any kind of office in Belgium must be registered according to Belgian law (ibid., art. 130), and the directors of such companies incur the same responsibility as those of Belgian companies.

In Spain the Code of Commerce2 requires that foreign companies operating in the Peninsular should conform to the law of their own country with respect to their capacity to contract, and with that of Spain as to all that concerns the 'creation of their establishments on Spanish territory, their commercial operations, and the jurisdiction of the Spanish tribunals.' Moreover, if they establish a branch in Spain they must register their articles, &c., in the same manner as in Italy.

In Germany foreign companies establishing a branch in the empire are similarly required to execute the formalities prescribed by the Code of Commerce.

So also in Mexico, where the recent Code of Commerce requires from foreign companies the publication of their annual balancesheet and of the names of their directors 3.

1 Aix 5 août 1868 (S. 1868, 2. 334), Cass. 29 avril et 28 octobre 1885 (R. S. 1885, p. 92), Seine 12 décembre 1885 (S. S. 1888, p. 104), Seine 17 janvier 1888 (S. S. 1888, p. 425).

Cf. also Lyon-Caen et Renault, 'Traité des Sociétés commerciales,' p. 823, and Houpin, Traité théorique et pratique des sociétés par actions françaises et étrangères,' T. i. p. 5.

2 Articles 15 and 21, last paragraph.

3 Articles 265-267.

It will thus be seen that the law of Italy with respect to foreign companies does not stand upon an absolutely unique basis.

But it is none the less questionable whether the general stagnation of business in that country at the present time is not largely attributable to the illiberal character of its commercial legislation, and whether Italy, at any rate, is not unwise to discourage in this manner the introduction of foreign capital and foreign enterprise. For it must by this time be evident to every one but the most bigoted patriot, having any acquaintance with that country, that in spite of the boastful adage to the contrary, current during the first outburst of enthusiasm consequent upon the dawning of a new era, 'Italia non se farà da se.'

MALCOLM MCILWRAITH.

ACTIO PERSONALIS MORITUR CUM PERSONA

IN THE LAW OF SCOTLAND.

THE principle of law embodied in this maxim has been recently

examined in the Scots Courts in Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859. Shortly stated, the plaintiff's action was for payment to him as Executor of his deceased wife of £500 in name of damage and solatium, or alternatively, to him as an individual, of a like sum, and was laid on the ground that his wife had been grossly maltreated by those in charge of her while she was an inmate of the defendant Institution-her death, indeed, which occurred while she was still insane, being alleged to be due to the ill-treatment she received. On the facts disclosed it was held that the plaintiff's wife's death was not due to the fault of the defendant's servants, and the plaintiff at the hearing of the appeal did not insist on his title to sue as an individual, but insisted that personal injury had been inflicted on his wife, and that he, as her Executor, had a title to sue for damages in respect thereof. The Lord Ordinary (Kincairney) being of opinion that the claim transmitted to the plaintiff as Executor, the First Division of the Court of Session appointed the case to be heard before seven Judges, on account of its difficulty and importance. The Lord President (Robertson), Lords Young, Adam, Mc Laren and Kinnear, were of opinion that an Executor has no title to raise and follow out an action of damages for personal injury inflicted on the deceased person he represents. The Lord Justice Clerk (Kingsburgh) and Lord Trayner dissented.

With deference, it is submitted that the opinion of the majority of the Court is erroneous, and regret must be felt by many jurists that this branch of Scots Law formerly in advance of, should have been brought into conformity with, the rule of the English Common Law, a rule at once barbarous and without plausible ground. The reasons assigned for the judgment by the majority of the Court in the case under consideration were

(1) That in England, the American States, France and elsewhere no such ground of action is recognized. However desirable it may be to bring the Laws of England and Scotland into uniformity, this is no sufficient reason for forcing upon the laws of one country a rule which has nothing to recommend it. In a matter open to less

serious criticism the Scots Courts did not accept the English law of 'Common Employment' till it was thrust upon them by the House of Lords.

(2) That there is no trace in the Books of the recognition of such a right, and that a more limited right is given to Executors, viz.:-the right to follow out and insist in an action which has been raised by the injured person himself. The first part of this proposition is referred to afterwards, the second is not worth attention, except indeed as an argument for the position we are maintaining.

(3) That the injured person may have had good reasons for not insisting in an action in view of the fact that his character, health, losses in business and the like would be subject to investigation, and that if he did not raise an action it should be denied to his Executor who has sustained no injury, and who merely wishes to make money out of the suffering of the deceased, per Lord Mc Laren, p. 863.' In the present case this argument cannot apply, as the injured person was insane at the time when the alleged cause of action emerged, and died before being in a position to instruct an action to be raised, or even to appreciate that any right to recover damages had arisen to her. Take even a stronger case. Suppose that A inflicts such ill-treatment upon B that the latter becomes insane, and in course of, say, a few weeks dies from the result of A's treatment, without regaining his reason. Is A to go free simply because his victim was rendered incapable of instructing his solicitor? A law which answers this in the affirmative is difficult to support.

But it is submitted that in Scotland the question was not open and that the case of Auld v. Shairp, Dec. 16, 1874, 2 R. 191 (approved of in Wood v. Gray & Sons, '92 A. C. 576, per Lord Watson p. 580), should have been followed in Bern's Executor v. Montrose Asylum. The case of Auld was raised by the Executrix (the widow) of Dr. Auld, who was for some time Classical Master in Madras College, St. Andrews, against the Principal of the United College at St. Andrews for damages in respect that the defendant by retaining a professorship, after obtaining an appointment as Principal, and by slanderous statements regarding the deceased had prevented the latter from being appointed to the Chair of Humanity. In that case, raised two years after Dr. Auld's death, the plaintiff undoubtedly alleged injury to herself, as well as to her husband, but the wrong done to her, if any, was an immediate consequence of the wrong done to Dr. Auld, and the only question raised was precisely the one raised in Bern's case. It was, however, upon this point of patrimonial loss that the majority of the Court distinguished the two cases. But are there grounds of distinction. sufficient to enable the Court, with reason, to say that in the one